O. Abdollahi v. Overtime Fitness, Inc., et al. CASE NO. 113CV241413
DATE: 19 June 2014 TIME: 9:00 LINE NUMBER: 11
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Wednesday 18 June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 19 June 2014, the motion of plaintiff Omid Abdollahi (“Plaintiff”), who is self-represented, to quash or, in the alternative, issue a protective order with respect to the subpoenas served by defendant Overtime Fitness, Inc. (“Defendant”) was argued and submitted. Defendant filed a formal opposition to the motion.

Statement of Facts

This action arises from the alleged discrimination and assault of a patron at a recreational gym. Plaintiff alleges the following: Plaintiff, an individual of Middle Eastern descent, signed a membership agreement and joined Defendant’s gym in Mountain View in March 2011. Soon thereafter, Defendant’s staff—including defendants Sheldon Dean (“Dean”), Nic Thompson (“Thompson”), and Darrick Truong (“Truong”)—began to racially harass Plaintiff. On 29 April 2011, Plaintiff was exercising at the gym when Dean verbally berated and then assaulted him. Plaintiff complained about the incident to Defendant’s management. In response, Defendant’s principal owner, Laura Tauscher (“Tauscher”), wrote a letter to Plaintiff stating that his aggressive behavior caused the incident. Thereafter, Defendant terminated Plaintiff’s membership.

In his operative first amended complaint, Plaintiff asserts causes of action against Defendant and its employees for assault, negligence, violation of the Unruh Act, emotional distress, and unfair business practices.

Discovery Dispute

On 1 April 2013, Plaintiff served a set of special interrogatories, set one (“SI”) and requests for production of documents, set one (“RPD”) on Defendant. Defendant responded, but Plaintiff found many of the responses to be deficient.

Plaintiff filed a motion to compel further responses to the SI and RPD. On 20 September 2013, the Court (Hon. Judge Kenneth Barnum) entered an order granting in part Plaintiff’s motion to compel.

Defendant served further responses to the SI and RPD, but Plaintiff again found the responses to be deficient. On 3 December 2013, Plaintiff filed a motion for terminating sanctions, or issue and/or evidence sanctions. The Court denied Plaintiff’s motion for non-monetary sanctions without prejudice on 23 January 2014.

On 8 April 2014, Defendant served subpoenas on non-parties 24 Hour Fitness USA, Inc. and Gold’s Gym seeking:

Any and all records regarding Abdollahi’s membership at the subject gym, use of the subject gym, visits to the subject gym, including attendance records, payment records, complaints against Abdollahi by other persons, including gym members, staff, trainers, and any and all others, any and all correspondence to and from [the subject gym] to Abdollahi, any and all incident reports regarding Abdollahi, any record of termination of Abdollahi’s membership, from 01/01/2005. (Kaplan Decl., Ex. B.)

On 30 April 2014, Plaintiff contacted Defendant’s counsel regarding the subpoenas. He asked Defendant to withdraw the subpoenas as they seek irrelevant information, violate his right to privacy, and are overbroad and unduly burdensome. Defendant refused to withdraw the subpoenas.

Based on the parties’ inability to informally resolve the dispute, Plaintiff filed this motion to quash or, in the alternative, for a protective order, on 1 May 2014. On 6 June 2014, Defendant filed its opposition. Plaintiff filed his reply on 12 June 2014.

Discussion

Plaintiff seeks an order quashing the subpoenas served on non-parties 24 Hour Fitness USA, Inc. and Gold’s Gym. Plaintiff asserts that the subpoenas seek irrelevant information, violate his right to privacy, and are overbroad and unduly burdensome.

A. Legal Standards

Pursuant to Code of Civil Procedure section 1987.1, parties and/or non-party witnesses may move for an order to quash or modify a subpoena duces tecum on the ground that the records sought are not within the permissible scope of discovery or that the requests are unduly burdensome. (See Code Civ. Proc., § 1987.1, subds. (a) & (b).)

Upon motion reasonably made, the court may make an order quashing a subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as it shall declare. (See Code Civ. Proc., § 1987.1, subd. (a).) In addition, the court may make any other order as may be appropriate to protect against unreasonable or oppressive demands, including unreasonable violations of the right to privacy. (See Code Civ. Proc., § 1987.1, subd. (a).)

The party objecting to a discovery request bears the burden of explaining and justifying its objections. (See Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

B. Analysis

Plaintiff argues that the records sought by Defendant are protected by the right to privacy and irrelevant, and the subpoenas are overbroad and unduly burdensome.

1. Privacy

Plaintiff asserts that the subpoenas intrude upon his right to privacy because they seek information concerning his membership in an association and his confidential financial information.

The right to privacy protects an individual’s “reasonable expectation of privacy against a serious invasion.” (Pioneer Electronics, Inc. v. Superior Court (2007) 40 Cal.4th 360, 370.) Where a serious invasion of the right to privacy is shown, the proponent of the discovery must demonstrate that the information sought is “directly relevant” to a claim or defense, and “essential to the fair resolution of the lawsuit.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 859; see also Binder v. Superior Court (1987) 196 Cal.App.3d 893, 901 [holding “direct relevance” requires something more than an assertion that the requested discovery might lead to admissible evidence].) Once direct relevance has been demonstrated, the proponent of discovery must show that the information sought is not available through less intrusive means. (Allen v. Superior Court (1984) 151 Cal.App.3d 447, 449.) The Court must then carefully balance the right to privacy on the one hand, and the right of civil litigants to discover facts, on the other. (Pioneer Electronics, Inc. v. Superior Court, supra, 40 Cal.4th at p. 371.)

a. Serious Invasion of Right to Privacy

Plaintiff identifies two separate aspects of his privacy upon which he contends the subpoenas intrude: (1) his right to associational privacy and (2) his right to privacy in his financial affairs.

First, Plaintiff asserts that disclosure of his gym attendance records is a serious invasion of his right to associational privacy.

The privacy of personal association is protected by the First and Fourteenth Amendments of the United States Constitution. (See N.A.A.C.P. v. Alabama (1958) 357 U.S. 449, 460-461; Britt v. Superior Court (1978) 20 Cal.3d 844, 852-853.) The freedom to associate with the persons of one’s choice is divided into two separate components: the freedom of intimate association and the freedom of expressive association. (See Roberts v. United States Jaycees (1984) 468 U.S. 609, 617-618.) The freedom of intimate association receives protection as a fundamental element of personal liberty. (Id. at p. 618.) In contrast, the freedom of expressive association receives protection as a means of preserving the liberty to engage in activities protected by the First Amendment, including the freedom of speech, assembly, petition for the redress of grievances, and the exercise of religion. (Id.)

Plaintiff does not claim that members of Gold’s Gym or 24 Hour Fitness, Inc. engage in any expressive activities protected by the First Amendment, such as the advocacy of social or political points of view. Therefore, only the freedom of intimate association may be applicable to this matter.

The right to associational privacy stems from the right to privacy in one’s familial relationships. “Family relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one share not only a special community of thoughts, experiences, and beliefs but also distinctly personal aspects of one’s life.” (Roberts, supra, 468 U.S. at p. 620.) Thus, whether a relationship is protected by the right to intimate association depends upon factors common to the family relationship, including the limited size of the association, a high degree of selectivity in decisions to begin and maintain the affiliation, and the seclusion from others in critical aspects of the relationship. (Id.)

As indicated above, before the burden shifts to Defendant to demonstrate direct relevance, the initial burden is on Plaintiff to demonstrate that the subpoenas raise a particular privacy concern. (See Fairmont Ins. Co., supra, 22 Cal.4th 245, 255.) Here, Plaintiff simply asserts, without any substantive discussion, that his attendance records at the gyms are protected by the right to the freedom of intimate association. As such, he provides no evidence or argument concerning the size of the two gyms, the degree of selectivity in decisions to begin and maintain the affiliation, and the seclusion from others in critical aspects of the relationship. Thus, Plaintiff fails to carry his burden to demonstrate that disclosure of his attendance records at these two gyms constitutes a serious invasion of his right to the freedom of intimate association. Accordingly, Plaintiff’s attendance records are not protected by the right to privacy, and the objection with regard to these records is unwarranted.

Second, Plaintiff claims that disclosure of his payment records constitutes a substantial intrusion into his financial affairs. Plaintiff’s argument is persuasive. It is well-established that the right to privacy extends to a person’s financial affairs, including consumer payment records. (See In re Insurance Installment Cases (2012) 211 Cal.App.4th 1395, 1428 [finding right to privacy in insurance policyholders payment history].) Accordingly, Plaintiff has established that the request for payment records constitutes a serious invasion of his right to privacy.

b. Direct Relevance

Defendant contends that Plaintiff’s payment history is directly relevant to its defense of his claims. Here, Plaintiff alleges that Defendant terminated his gym membership because he is of Middle-Eastern descent. (See First Amended Complaint, p. 6: 1-3.) To rebut this allegation, Defendant seeks to establish that it had a non-discriminatory reason for the termination of Plaintiff’s membership – namely, Plaintiff’s aggressive, abusive and threatening behavior to other members and Defendant’s staff. (See Opp’n., p. 3: 17-19.) It intends to show that Plaintiff has been terminated from other gyms for similar conduct.

Defendant asserts that Plaintiff’s payment history at Gold’s Gym and 24 Hour Fitness, Inc. will assist it in proving this defense. It contends that “should any ‘adverse action’ against Plaintiff be due to his failure to make payment that information is [] relevant and discoverable by [Defendant].” (Opp’n., p. 5: 4-5.) This argument is without merit.

This Court believes that this request may reveal relevant and admissible evidence at time of trial should it turn out that Plaintiff has had a history of aggressive behavior at other facilities. While there may be some question as to the value of his payments in membership dues, the Court does not believe that this reason alone should outweigh the right of Defendant to gain access to these records.

This Court can protect the rights of Plaintiff by examining the records in camera.

c. Conclusion

Based on the foregoing, Plaintiff’s objection on the ground of privacy is overruled as to his attendance records at the subject gyms and as to his payment history.

2. Relevance

Plaintiff argues that the subpoenaed records are not relevant to this action due to the Court’s purported issuance of a sanction precluding Defendant from admitting evidence concerning “legally justified membership terminations.” In this respect, he relies upon the following sentence in the Court’s eleven-page order: “an evidence sanction precluding Defendant from introducing matters into evidence concerning legally justified membership terminations is suitable.” (Kaplan Decl., Ex. A, p. 10.) Plaintiff concludes that this sentence establishes that the Court issued an evidence sanction. This argument lacks merit.

A plain reading of the 23 January 2014 order demonstrates that no evidence sanction was imposed. First, the conclusion of the order unequivocally reads, “Plaintiff’s motion for terminating sanctions, or for issue and/or evidence sanctions is DENIED WITHOUT PREJUDICE.” (Kaplan Decl., Ex. A, p. 11.) Second, Plaintiff fails to read the above sentence in the context of the Court’s discussion. As the order makes clear, the Court found that Defendant’s responses to the RPD were not code-compliant, and thus, in violation of the Hon. Kenneth Barnum’s 20 September 2013 order. However, given that “[i]ssue and evidence sanctions are considered ‘drastic’ measures and typically are not imposed absent repeated or persistent abuses of the discovery process”, the motion for evidence sanctions was “DENIED WITHOUT PREJUDICE to renewing the motion upon a further showing of good cause.” (Kaplan Decl., Ex. A, p. 10.) The sentence relied upon by Plaintiff merely indicates that, upon a further showing of good cause, such a sanction may be suitable. Accordingly, this Court did not issue an evidence sanction concerning this topic. As such, the records sought are not rendered irrelevant on this ground.

Next, Plaintiff asserts that his conduct at prior gyms is not at issue. (Mem. Ps & As., p. 6: 6-7.) Thus, he contends that the records sought are not relevant to this action. In opposition, Defendant asserts that the subpoenas seek relevant information.

Discovery is allowed for any matters that are not privileged, relevant to the subject matter involved in the action, and reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) The “relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards are applied liberally with any doubt generally resolved in favor of discovery. (Colonial Life & Acc. Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.) For discovery purposes, information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

Here, as discussed above, Defendant intends to establish that it did not terminate Plaintiff’s membership on account of his Middle Eastern descent. Instead, it will attempt to prove that it terminated Plaintiff’s membership due to his aggressive, abusive and threatening behavior. Defendant is informed that Plaintiff has been terminated from other gyms for similarly inappropriate conduct.

If records exist indicating that Plaintiff has been terminated from Gold’s Gym or 24 Hour Fitness, Inc. for rude, aggressive or threatening behavior in the last nine years, these records may assist Defendant in proving that it terminated Plaintiff for similarly inappropriate conduct. Accordingly, Plaintiff’s objection on the ground of relevance is overruled.

3. Undue Burden and Overbreadth

Plaintiff asserts that the subpoenas are unduly burdensome and impermissibly overbroad because they seek all records regarding his gym membership over a nine-year period.

“[S]ome burden is inherent in all demands for discovery.” (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 418.) A party claiming that requested discovery is unduly burdensome must make a particularized showing of facts demonstrating hardship. (Id. at pp. 417-418.)

Here, Plaintiff makes no particularized showing of facts demonstrating the hardship that Gold’s Gym or 24 Hour Fitness, Inc. will suffer by providing documents over a nine-year period relating to his membership. Accordingly, Plaintiff’s objections on these grounds are overruled.

C. Conclusion

Because Plaintiff’s relevance objection is sustained in its entirety, Plaintiff’s motion to quash the subpoenas served on Gold’s Gym and 24 Hour Fitness, Inc. is OVERRULED. The records are to be provided to this Department for an in camera inspection.