Case Name: Alba Mirola v. Godinez Tires, et al.

Case No.: 2015-1-CV-287229

I. Background and Discovery Dispute

This is a sexual harassment and workplace discrimination action brought by plaintiff Alba Mirola (“Plaintiff”) against defendants Tomas Godinez and Godinez Tires (“Defendants”).

According to the allegations in the first amended complaint (“FAC”), Plaintiff worked as a receptionist at Godinez Tires. During the course of her employment, specifically from March 2014 to April 2015, her supervisor Tomas Godinez continuously made unwelcome sexual advances and lewd remarks toward her. Plaintiff alleges he followed her around the tire shop and told customers she was his girlfriend, despite her requests that he refrain from doing so. On April 9, 2015, Tomas Godinez grabbed her from behind and kissed her without her consent. As a result, Plaintiff gathered her belongings and left work. Plaintiff formally resigned her position several days later.

Plaintiff asserts causes of action against Defendants for: (1) sexual harassment in violation of the Fair Employment and Housing Act (“FEHA”); (2) hostile work environment in violation of the FEHA; (3) discrimination in violation of the FEHA; (4) constructive termination in violation of the FEHA; (5) constructive termination in violation of public policy; (6) assault; (7) battery; (8) gender violence; (9) violation of the Ralph Civil Rights Act; (10) sexual battery; (11) violation of the Tom Bane Civil Rights Act; (12) false imprisonment; and (13) intentional infliction of emotional distress.

As relevant to the instant discovery dispute, on or about May 2, 2016, Defendants served identical deposition subpoenas for the production of business records on Intempus Realty and O’Reilly Auto Parts, Plaintiff’s current and former employers. (Navarette Decl., Exhs. 1-2.) Defendants served Plaintiff with a notice to employee that same day. (Navarette Decl., Exhs. 1-2.)

The subpoenas both specifically requested the following: “All documents and communications referring to or relating to the employment of Alba Mirola, including, but not limited to, her personnel file and memorandum, employment application, resume, employment contract(s), payroll records, disciplinary records, performance reviews, attendance records, termination records, resignation records, complaints made by or against Ms. Mirola, claims for sexual harassment or discrimination made by or against Ms. Mirola, and documents relating to any and all employee benefits received by Ms. Mirola, including, but not limited to, vacation benefits, health benefits and pension benefits.” (Navarette Decl., Exhs. 1-2.)

Currently before the Court is Plaintiff’s motion to quash Defendants’ subpoenas directed to O’Reilly Auto Parts and Intempus Realty. In opposition, Defendants appears to request monetary sanctions.

II. Motion to Quash

Plaintiff moves to quash the subpoenas on the ground they intrude on her right to privacy.

Code of Civil Procedure section 1985.6, subdivision (f)(1), in conjunction with Code of Civil Procedure section 1987.1, authorizes a party to bring a motion for an order quashing a subpoena in its entirety. A court may issue an order limiting discovery, including an order quashing a subpoena, to protect a person or witness from unreasonable or oppressive demands, including unreasonable violations of the right to privacy. (See Code Civ. Proc., § 1987.1, subd. (a).)

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.) It is well-established that the right to privacy extends to a person’s work history and personnel records, including income information and evaluations of the person’s work. (See Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1426-27, 1433; see also Board of Trustees of Leland Stanford Jr. Univ. v. Superior Court (“Stanford”) (1981) 119 Cal.App.3d 516, 528-30.)

As an initial matter, Defendants argue Plaintiff does not have a right to privacy in her personnel records. In support of their argument, Defendants assert the court in Stanford only considered whether a third party had a right to privacy in his or her personnel records. Contrary to Defendants’ assertion, the court in Stanford considered the privacy interests of parties in the case. Defendants’ argument is therefore unmeritorious. Here, the subpoenas seek personnel records from Plaintiff’s previous and current employer, which are protected by her right to privacy.

Nonetheless, the right to privacy is not absolute. To overcome a privacy objection, the proponent of the discovery must demonstrate that the information sought is directly relevant to a claim or defense. (Alch v. Superior Court, supra, 165 Cal.App.4th at p. 1425.) “‘When compelled disclosure intrudes on constitutionally protected areas, it cannot be justified solely on the ground that it may lead to relevant information.’” (Stanford, supra, 119 Cal.App.3d at p. 525, quoting Fults v. Superior Court (1979) 88 Cal.App.3d 899, 904.) “And even when discovery of private information is found directly relevant to the issues of ongoing litigation, it will not be automatically allowed; there must then be a ‘careful balancing’ of the ‘compelling public need’ for discovery against the ‘fundamental right of privacy.’” (Stanford, supra, 119 Cal.App.3d at p. 525, quoting Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 657.) In demonstrating there is a compelling need for the discovery on balance, the proponent of the 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 [court abused its discretion by ordering production of documents pursuant to a business records subpoena where proponent failed to demonstrate there were no less intrusive means for obtaining the discovery].)

A. Direct Relevance

1. Payroll Records and Documents Relating to Employee Benefits

Defendants argue payroll records and documents relating to employee benefits are relevant to Plaintiff’s duty to mitigate damages, which they intend to raise as an affirmative defense at trial.

A discharged employee “generally has a duty to mitigate his [or her] damage by seeking other employment through the exercise of reasonable diligence.” (Cal. School Employees Assn. v. Personnel Com. (1973) 30 Cal.App.3d 241, 246.) “The measure of recovery of a wrongfully discharged employee is the amount of salary he [or she] would have received plus other benefits such as retirement, accumulated vacation and sick time, pay increases and interest on pay increases from date of accrual to judgment, Less the amount which the employer affirmatively proves the employee has earned or with reasonable diligence might have earned from other employment.” (Id. at pp. 249-50, citing Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 182.)

First, Defendants fail to demonstrate the relevance of wages or benefits paid by O’Reilly Auto Parts, Plaintiff’s employer prior to Godinez Tires. As indicated above, mitigation of damages involves a comparison of the wages and benefits paid by the employer alleged to have wrongfully terminated the employee and wages earned through subsequent employment. Defendants provide no authority in support of a contrary conclusion, and the Court cannot conclude payroll records and documents relating to benefits from a past employer are relevant. Accordingly, Defendants have not satisfied their threshold burden of demonstrating that payroll records and employee benefit documents in the possession of O’Reilly Auto Parts are directly relevant to this case.

With respect to the subpoena directed to Intempus Realty, payroll records showing wages Plaintiff earned after her wrongful termination by Defendants are directly relevant because courts consider whether an employee obtained subsequent employment and the wages paid by a subsequent employer when evaluating mitigation of damages. However, Defendants have not specifically articulated or submitted authority demonstrating documents relating to benefits provided by Intempus Realty are directly relevant. Accordingly, Defendants demonstrated that payroll records showing wages Plaintiff earned from Intempus Realty are directly relevant, but have not established the same with respect to documents related to benefits.

2. Performance Evaluations and Disciplinary Records

Defendants argue written warnings they issued and other evidence of Plaintiff’s poor work performance are relevant to her true motive for commencing this action. According to Defendants, such documents will show Plaintiff resigned and commenced the instant action because she knew she might be terminated based on her job performance.

First, Defendants’ argument is problematic as it focuses on performance evaluations and written warnings Defendants issued to Plaintiff while she was in their employ as opposed to performance evaluations and warnings issued by Plaintiff’s other employers. Such information would presumably be in Defendants’ possession, and it is thus not clear how their argument pertains to the subpoenas directed to Plaintiff’s current and former employers.

Second, Defendants do not explain or cite any authority in support of their assertion that personnel records from Plaintiff’s past and current employers are in any way relevant. Defendants have not, therefore, established that performance evaluations and disciplinary records from either O’Reilly Auto Parts or Intempus Realty are directly relevant to any claim or defense.

3. Other Records

The subpoenas directed to O’Reilly Auto Parts and Intempus Realty also include employment contracts, attendance records, termination records, and resignation records. Defendants do not address whether these specific records are directly relevant. Accordingly, Defendants have not satisfied their threshold burden as to these records.

4. Summary

In summary, Defendants only demonstrated payroll records evidencing wages Intempus Realty paid Plaintiff are directly relevant to a claim or defense. As Defendants failed to demonstrate any of the other documents are directly relevant, the motion to quash the subpoena directed to Intempus Realty is meritorious as to all documents other than the payroll records.

Defendants failed to demonstrate any of the records in the subpoena to O’Reilly Auto Parts are directly relevant to a claim or defense. The motion to quash the subpoena directed to O’Reilly Auto Parts is therefore meritorious as well.

B. Availability of Less Intrusive Means

In consideration of the foregoing conclusion, the Court will consider the availability of less intrusive means of discovery on balance solely with respect to the Intempus Realty payroll records. Defendants argue they cannot obtain such records through less intrusive means because they have already tried to obtain them by propounding written discovery requests on Plaintiff.

As relevant to payroll records, Defendants served Plaintiff with requests for the production of documents, set one (“RPD”), No. 22, which sought “all documents and communications sufficient to show the amount and source of payment and income received by Plaintiff since leaving the employ of Godinez Tires.” (Aalei Decl., Exh. B.) Plaintiff responded with an agreement to produce responsive documents.

While Defendants assert they lack less intrusive means for obtaining the Intempus Realty payroll records because Plaintiff has yet to produce documents responsive to RPD No. 22, they have effectively demonstrated there are indeed less intrusive means of discovery that would not require the involvement of third parties. Defendants could bring a motion to compel compliance pursuant to Code of Civil Procedure section 2031.320, but for unknown reasons have failed to pursue that available course of action.

In conclusion, Defendants failed to demonstrate there are no less intrusive means for obtaining the Intempus Realty payroll records or that the compelling need for the discovery outweighs Plaintiff’s privacy interest.

C. Conclusion

Based on the foregoing reasons, the motion to quash the deposition subpoenas for the production of business records in their entirety is GRANTED.

III. Request for Monetary Sanctions

At the end of their opposition brief, Defendants include a section entitled “Plaintiff’s Conduct Constitutes an Abuse of the Discovery Process,” wherein they quote the following language from Code of Civil Procedure section 1987.2, subdivision (a): “the court may in its discretion award the amount of reasonable expenses incurred in making or opposing [a motion made pursuant to Code of Civil Procedure section 1987.1], including reasonable attorney’s fees.” While Defendants quote this provision and include discussion that would typically be advanced relative to a sanctions request, they do not actually state they are requesting sanctions, specify the amount of monetary sanctions they seek, or identify the individual against whom sanctions are sought. (See, e.g., Code Civ. Proc., § 2023.040.) Instead, Defendants simply conclude by stating Plaintiff’s conduct is an abuse of the discovery process. To the extent Defendants intended this part of their opposition to serve as a request for monetary sanctions, their request is DENIED.