Judge: Yolanda Orozco, Case: 21STCV05818, Date: 2022-09-27 Tentative Ruling
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Case Number: 21STCV05818 Hearing Date: September 27, 2022 Dept: 31
MOTION TO COMPEL NON-PARTY SUBPOENA FOR PRODUCTION OF DOCUMENTS IS DENIED, WITHOUT PREJUDICE
Background
On February 11, 2021, Manuel M. Mora (“Plaintiff”) a Complaint against Arrow Disposal Services, Inc., Kirk Tahmizian (collectively “Defendants”), and Does 1 to 20 for:
1) Employment Discrimination Based on Disability and Age in Violation of FEHA (Gov. Code §12940(a));
2) Failure to Provide Reasonable Accommodation, Pursuant to Government Code §12940(m);
3) Failure to Engage in a Timely and Good Faith Interactive Process, Pursuant to Government Code §12940(n);
4) Retaliation, Pursuant to Government Code §§12940(h) and 12940(m);
5) Failure to Prevent Discrimination and Retaliation, Pursuant to Government Code §12940(k);
6) Harassment in Violation of Government Code §12940(h);
7) Failure to Pay Overtime Wages (Labor Code §510);
8) Failure to Pay Minimum Wages (Labor Code §1197);
9) Failure to Provide Meal Periods (Labor Code §226.7);
10) Failure to Provide Rest Periods (Labor Code §226.7);
11) Failure to Provide Accurate, Itemized Wage Statements (Labor Code §226);
12) Failure to Pay All Wages Due Upon Termination (Labor Code §203);
13) Retaliation in Violation of Labor Code §1102.5;
14) Wrongful Discharge in Violation of Public Policy;
15) Violation of Business and Professions Code §§17200, et seq.; and
16) Private Attorney General Act (Labor Code § 2699, et seq.)
On July 18, 2022, Plaintiff’s Motion to Compel Non-Party Romac Financial Group, Inc./ Roy McGarrell & Co., CPA To Comply with Plaintiff's Deposition Subpoena For Personal Appearance And Production Of Documents And Things Pursuant CCP Section 1987.1 was denied for being premature.
On August 05, 2022, Plaintiff filed a renewed motion to compel Non-Party Romac Financial Group, Inc. to produce documents at a deposition.
Defendant Arrow Disposal Service (“ADS”) filed opposition papers on September 14, 2022. Plaintiff filed a Reply on September 21, 2022.
Legal Standard
A party seeking discovery from a person who is not a party to the action may obtain discovery by oral deposition, written deposition, or deposition for production of business records. (Code Civ. Proc., § 2020.010.) A deposition subpoena may command: (1) only the attendance and testimony of the deponent, (2) only the production of business records for copying, or (3) the attendance and testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things. (Code Civ. Proc., § 2020.020.)
A service of a deposition subpoena shall be effected with sufficient time in advance of the deposition to provide the deponent a reasonable opportunity to locate and produce any designated documents and, where personal attendance is commanded, a reasonable time to travel to the place of deposition. (Code Civ. Proc., § 2020.220(a).) Personal service of any deposition subpoena is effective to require a deponent who is a resident of California to personally appear and testify if the subpoena so specifies; to produce any specified documents; and to appear at a court session if the subpoena so specifies. (Code Civ. Proc., § 2020.220(c).) A deponent who disobeys a deposition subpoena may be punished for contempt without the necessity of a prior order of the court directing compliance by the witness. (Code Civ. Proc., § 2020.240.)
“[A] reasonable and good faith attempt at informal resolution of the dispute between the party requesting the personal records and the consumer or the consumer’s attorney.” (Code Civ. Proc. §1985.3(g).)
The court may, on motion or on the court’s own motion after giving notice and an opportunity to be heard, make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms and conditions as the court shall declare, including protective orders. (Civ. Proc. Code § 1987.1(a).)
Discussion
Since Plaintiff is pursuing a case against Defendants under the Private Attorneys General Act (PAGA), Plaintiff requires access to the Defendants’ timekeeping records.
Plaintiff asserts that on December 15, 2021, Defendant Arrow Disposal Service (“ADS”) served verified responses that it did not have (a) Plaintiff’s payroll records, (b) Plaintiff’s time records or (c) Plaintiff’s wage statements because it was not in its custody or possession or control but that non-party Romac Financial Group (“Romac”) did. (Zambarao Decl. ¶¶ 4,5, Ex. A.) Plaintiff asserts that Defendant Kirk Tahmizian committed perjury when he verified the responses but later admitted to not doing a reasonable search and inquiry to locate Plaintiff’s time records. (Id. ¶ 5, Ex. B.)
Plaintiff now seeks to compel non-party Romac to produce the documents related to Plaintiff’s payroll, including paychecks.
i. History of Subpoena for Deposition on Non-Party Romack
Defendants oppose the motion on the basis that the deposition notice failed to provide the non-party deponent with sufficient time to comply with the request for the production of documents. Defendants assert that the deposition notice was filed on July 19, 2022, via email, and only gave the deponent 11 calendar days to comply before the deposition took place on August 01, 2022.
Plaintiff argues that non-party Romac has had notice that Plaintiff is seeking documents relating to Defendants’ pay structure since April 11, 2022. Romac was initially served with a subpoena for deposition set for May 6, 2022. (Zambrano Decl. ¶ 6.) Romac’s owner, Rory McGarrel stated he would generate the payroll records but requested $1,2022.00 for the time and effort it would take to produce the documents. Plaintiff’s counsel states that he did not refuse to pay for the records but instead asked McGarrel to confirm that he was representing “it would take 8 hours to find and copy the records, based on the quoted $1,200.00 total derived from a $150/hr rate.” (Id. ¶ 9, Ex. C.) There was no response. (Id.) Defense counsel represented to Plaintiff that he would be representing Romac for the purpose of the Subpoena and motion to compel and that Romac was willing to produce all documents available regarding Mr. Mora’s employment. (Id. ¶ 11, Ex. D.)
On August 01, 2022, Rory McGarrel appeared for the deposition via zoom, but no documents were produced during the deposition. At the August 01, 2022 deposition, McGarrel represented that it may not have the payroll records because they are returned to Defendants after they are processed. (Zambrano Decl. ¶ 19, Ex. H.) Plaintiff’s counsel represents it is willing to compensate Romac for copies of the payroll records pursuant to CCP section 2020.430(c)(2) and Evidence Code section 1563(b)(1). (Id. ¶ 21, Ex. G.)
ii. Notice
Defendants also assert that the notice was defective because under CCP section 2020.510(d), there was no proof of service to Plaintiff employee or written authorization to release Plaintiff’s employment records. Plaintiff asserts that the section 1985.3 notice is not required when the plaintiff seeks his own employment records.
Defendants assert that because Plaintiff also requested: “All DOCUMENTS utilized to draft paychecks for all employees of ARROW from November 9, 2019, through the present,” notice to the consumer was required.
Under CCP section 1985.3 subdivision (a)(2), “Consumer” means “any individual, partnership of five or fewer persons, association, or trust which has transacted business with, or has used the services of, the witness or for whom the witness has acted as agent or fiduciary.” Since the consumers here are the Defendants, Plaintiff complied with section 1985.3 when he served the Defendants. (See Code Civ. Proc., § 2020.510 subd. (c).)
Moreover, the Defendants have not explained why information relating to the “drafting” of payroll records invokes privacy concerns relating to the employees or why a protective order would not ameliorate such concerns. Additionally, Defendants have not explained how other employees fit the definition of “consumer” under CCP section 1985.3. However, to the extent Plaintiff seeks employment records pertaining to certain employees, then notice or authorization by specific employees is required under CCP section 1985.6. (See also Code Civ. Proc., § 2020.510.) In this Motion, Plaintiff does not deny that it is seeking payroll records of other employees because the information sought is relevant. (Zambrano Decl. ¶ 21.) However, the fact that the employment documents are relevant does not mean that Plaintiff was not required to comply with CCP section 1985.6.
iii. No Separate Statement
Furthermore, the Court finds that Plaintiff’s Motion is Deficient because no separate statement has been filed. A motion to compel the production of documents at a deposition requires the filing of a separate statement. (Cal. Rules of Court, rule 3.1345 subd. (a)(5).)
A separate statement is not required if there has been no response, but the Defendants responded when they filed an objection to the documents sought. (Cal. Rules of Court, rule 3.1345 subd. (b)(1).)
Moreover, Plaintiff has failed to show that compliance with CCP section 1985.6 is not required as to subpoena request No. 6: “All DOCUMENTS utilized to draft paychecks for all employees of ARROW from November 9, 2019, through the present.”
Based on the foregoing, Plaintiff’s Motion to Compel is DENIED without prejudice, as is Plaintiff’s request for sanctions.
Conclusion
Plaintiff’s Motion to Compel is DENIED, without prejudice.
Plaintiff to give notice.
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