Judge Upinder S. Kalra, Case 20STCV45775 2023-04-06 Tentative Ruling

RESPONDING PARTY(S): Defendants Menasha Packaging
Company, LLC, and Maria Perez

On December 1, 2020, Plaintiff Esiquio Tello (“Plaintiff”)
filed a complaint against Defendant Menasha Packaging Company, LLC, Menasha
Global, LLC Menasha Packaging Comp., Menasha Packaging, Menasha, and Maria
Perez (“Defendants.”) The complaint alleges nine causes of action based on
disability discrimination and retaliation in violation of FEHA. Plaintiff
alleges that while working for Defendants, he developed disabilities and
requested reasonable accommodations. Between 2016 and 2017, Plaintiff underwent
surgery for occupation injuries to his shoulders. In 2019, Plaintiff was not
feeling well due to his disabilities and informed Defendant that he was unable
to come in to work and had to go to the doctor. Even though Plaintiff’s doctor
placed him off work, Plaintiff alleges that Defendants terminated him for
missing work.

On March 3, 2021, Defendants Maria Perez and Menasha
Packaging Company, LLC, each filed an Answer.

The current Motion to Quash Defendant’s Deposition Subpoena
was filed on December 23, 2022. Defendants’ Opposition was filed on March 23,
2023. Plaintiff’s Reply was filed on March 29, 2023.

CCP § 1987.1(a) states, “[i]f 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.”

“[U]pon motion reasonably
made by the party, judges may rule upon motions for quashing, modifying or
compelling compliance with, subpoenas.” Lee v. Swansboro Country Property Owners Ass’n (2007) 151 Cal. App. 4^th
575, 582-83. Either the nonparty witness who has been subpoenaed or any
party to the action may challenge the deposition
subpoena. Weil & Brown, Civ. Proc. Before Trial, ¶ 8:597.

A deposition subpoena may be quashed
for: (1) defects in form or content of the subpoena (e.g., inadequate
description of requested records); (2) defects in service of the subpoena
(e.g., failure to satisfy the requirements of providing notice to consumer; (3)
requesting production of records not within the permissible scope of
discovery; and (4) being unjustly burdensome or oppressive. Weil &
Brown, Civ. Proc. Before Trial, ¶ 8:598.

CCP § 2017.020(a) states “the court
shall limit the scope of discovery if it determines that the burden, expense,
or intrusiveness of that discovery clearly outweighs the likelihood that the
information sought will lead to the discovery of admissible evidence. The court
may make this determination pursuant to a motion for protective order by a
party or other affected person. This motion shall be accompanied by a meet and
confer declaration under Section 2016.040.”

First,
Plaintiff argues that the motion is untimely. However, as this Court previously
continued the matter, discovery is still opened, and thus this argument is
MOOT. Second, Defendant argues that the Separate Statement is deficient. When
filing a Motion to Quash Deposition Subpoena, a separate statement is required.
While the Court may find Plaintiff’s Separate Statement lacking, the Court will
still decide this matter on the merits.

Plaintiff moves to quash Defendants
Menasha Packaging Company LLC and Maria Perez’s subpoena which seek employment
records from Swissport Cargo Services, Inc., Plaintiff’s former employee.

2. All
DOCUMENTS received from or provided to ESIQUIO TELLO or anyone acting on his
behalf REGARDING any purported disability, injury, illness, medical condition,
medical treatment, or therapy, or any request for an accommodation, reasonable
accommodation, or leave of absence of ESIQUIO TELLO.

3. All
COMMUNICATIONS with ESIQUIO TELLO or anyone acting on his behalf concerning any
purported disability, injury, illness, medical condition, medical treatment, or
therapy, or any request for an accommodation, reasonable accommodation, or
leave of absence of ESIQUIO TELLO

4. All
DOCUMENTS REGARDING ESIQUIO TELLO applications for employment with SWISSPORT.

5. All
DOCUMENTS REGARDING ESIQUIO TELLO salary or pay rate for the duration of his
employment with SWISSPORT.

6. All
performance reviews and performance improvement plans concerning ESIQUIO
TELLO’s employment with SWISSPORT.

7. All
documents providing a job description of the position(s) held by ESIQUIO TELLO
during his employment with SWISSPORT.

8. All
COMMUNICATIONS with ESIQUIO TELLO regarding any complaint, claim, allegation,
or report, whether formal or informal, concerning any aspect, incident, or
condition of ESIQUIO TELLO’s employment or termination from SWISSPORT.

9. All
DOCUMENTS REGARDING any complaint, claim, allegation, lawsuit, or report,
whether formal, informal, or administrative, concerning any aspect, incident,
or condition of ESIQUIO TELLO’s employment or termination from SWISSPORT.

10. All
COMMUNICATIONS with ESIQUIO TELLO REGARDING the resolution or settlement of any
complaint, claim, allegation, lawsuit, or report, whether formal, informal, or
administrative, concerning any aspect, incident or condition of his employment
or termination with SWISSPORT.

11. ALL
DOCUMENTS REGARDING the resolution or settlement of any complaint, claim,
allegation, lawsuit, or report, whether formal, informal, or administrative,
concerning any aspect, incident or condition of his employment or termination
with SWISSPORT.

Plaintiff first argues that these
records are protected by a constitutional right of privacy. Pursuant to CCP §
1985.6, employment and personnel files are within the constitutionally
protected zone of privacy. Thus, because these files may contain confidential
information, such as medical information and financial information, Plaintiff has
a reasonable expectation that these records will remain private. Second,
Plaintiff argues that Defendant cannot demonstrate a legitimate and important
countervailing interest in these records. Third, Plaintiff argues that even if
Defendant were to show a legitimate reason for these records, Plaintiff can
“identify feasible alternatives that serve the same interests.” (Motion 16:
3-6.) Lastly, Plaintiff argues that Defendant cannot demonstrate that these
records are relevant and seeks to utilize inadmissible character evidence.

Defendant argues that the documents
requested are central to this case. Because Plaintiff made claims against
Defendant and challenged “the reasons from his termination, attacking the
veracity and credibility of Defendant Perez, and claiming emotional distress as
a result of his termination from MPC, Plaintiff opened the door to discovery of
information that bears on those topics.” (Opp. 6: 3-6.) Additionally, Plaintiff
alleges that he was “recruited” away from Swissport and was still working when
he returned to work for MPC. Thus, because there is an issue as to whether
Plaintiff adhered to Swissport’s attendance policy or if he was terminated or
resigned, these documents are relevant. Next, Defendant argues that while
Plaintiff claims that there are feasible alternatives that serve the same
interests, Plaintiff does not provide any, merely arguing that these documents
are not relevant. Lastly, these records are not sought as character evidence,
and this argument fails since the “test of discoverability is not admissibility
at trial.” (Opp. 7: 9, citing to CCP § 2017.010.) These requests do not concern
character evidence, but relate to whether Plaintiff claimed disability, accommodations,
attendance, and “the veracity of his claim that he worked at Swissport when he
was hired by MPC.” (Opp. 8: 12-14.)

“‘[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.) Here, these documents are relevant because Plaintiff’s claims concern
employment with Defendant, specifically a disability. Thus, Defendant is
entitled to determine if Plaintiff raised such a disability prior. Under CCP §
1985.6, a party may obtain employment records. These include “books, documents,
other writings, or electronically stored information pertaining to the
employment of any employee maintained by the current or former employer of the
employee, or by any labor organization that has represented or currently
represents the employee.” Lastly, character evidence arguments do not pertain
to whether something can be discovery, but is left for whether it would be
admissible later on in trial. Therefore, because discovery rules are liberally
construed in favor of obtaining information, the Court finds that this
discovery is pertinent.

[1]Plaintiff
has also filed a Motion to Quash the same Deposition Subpoena under reservation
ending in 55497. This appear to be the same deposition subpoena as at issue in
this case.