Case Name: Angelo Marta v. Applebee’s Restaurants West, LLC, et al.
Case No.: 2015-1-CV-281402

Motion by Plaintiff Angelo Marta for Protective Order and an Award of Monetary Sanctions

Factual and Procedural Background

This is a personal injury action. On the night of August 17, 2013, plaintiff Angelo Marta (“Plaintiff”) was working as a server at an Applebee’s Grill & Bar operated by defendant Apple Gilroy, Inc. (“Apple Gilroy”), a franchisee of defendant Applebee’s Restaurants West, LLC (“ARW”). (Complaint, ¶¶ 3, 9.) Defendant Cole MT San Jose CA, LP (“Cole MT”) owns the real property on which the Applebee’s Grill & Bar is located and the parking lots adjacent thereto. (Id., at ¶ 4.) “At approximately 1:30 a.m. on August 18, 2013, having concluded his shift, Plaintiff went to the parking lot behind the restaurant.” (Id., at ¶ 10.) Upon entering the parking lot, he observed two young men engaged in a physical altercation. (Id., at ¶ 11.) Subsequently, without any provocation by Plaintiff, the young men became aggressive toward Plaintiff and assaulted him. (Id., at
¶ 12.) One of the men, Elmer Portela (“Portela”), stabbed Plaintiff nine times during the attack. (Ibid.)

Plaintiff alleges that the young men were served alcoholic beverages at the Applebee’s Grill & Bar and Portela, who was under 21 years of age, was obviously intoxicated when he was served alcohol. (Complaint, ¶ 13.) Plaintiff further alleges that the shopping center in which the restaurant is located and the surrounding neighborhood are “reputed to have frequent occurrences of violent attacks similar to the attack committed against [him].” (Id., at ¶ 14.) “Despite the nature and extent of violent episodes at or near the premises, the entities that owned and managed the property failed to ensure the presence of security guards,” which “would have deterred the attackers and prevented the attack ….” (Id., at ¶ 15.)

Based on the foregoing, Plaintiff filed a complaint against several defendants, including Apple Gilroy, ARW, and Cole MT, alleging causes of action for: (1) violation of Business & Professions Code section 25602.1; and (2) premises liability.

Currently before the Court is the motion by Plaintiff for a protective order an award of monetary sanctions.

Discovery Dispute

On May 16, 2016, Cole MT served ARW and Apple Gilroy with virtually identical first sets of requests for production of documents (“RPD”). (See May Dec., Exs. A, B.) The sole request at issue here—RPD No. 1—asked ARW and Apple Gilroy to produce Plaintiff’s “entire work employment file.” (See P’s Sep. Stmt., pp. 2-3.)
A few days later, Plaintiff’s counsel sent Cole MT’s counsel a letter objecting to RPD No. 1 on the grounds of overbreadth, relevancy, and privacy. (See May Dec., Ex. C.) Plaintiff’s counsel asked that Cole MT’s counsel contact him to meet and confer regarding “an appropriate limitation” to the request. (Ibid.) Over the following weeks, counsel for the parties continued to meet and confer regarding the scope of the request and possible compromises regarding the same; however, they were unable to resolve the discovery dispute or otherwise agree upon the proper scope of the request. (See May Dec., Exs. D, E.)

Consequently, on June 16, 2016, Plaintiff filed the instant motion for protective order and an award of monetary sanctions. Cole MT filed papers in opposition to the motion on July 6, 2016, in which it requests an award of monetary sanctions. On July 12, 2016, Plaintiff filed a reply.

Discussion

Pursuant to Code of Civil Procedure section 2031.060, Plaintiff moves for a protective order limiting RPD No.1 “to documents related to discipline and training.” (P’s Mem. Ps. & As., p. 5.)

I. Legal Standard

When a request for production of documents has been propounded, the party to whom it is directed, and any other party or affected person, may promptly move for a protective order. (Code Civ. Proc., § 2031.060, subd. (a).) For good cause shown, the court may make any order that justice requires to protect any party from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (Code Civ. Proc., § 2031.060, subd. (b).) Such protective orders may include directions that all or some of the items or categories of items in the demand need not be produced or made available at all. (Code Civ. Proc., § 2031.060, subd. (b)(1).)

The issuance and formulation of protective orders are to a large extent discretionary. (Raymond Handling Concepts Corp. v. Super. Ct. (1995) 39 Cal.App.4th 584, 588.) In exercising its discretion, a court should consider the state’s interest in regulating discovery, namely facilitating the search for truth and protecting the legitimate privacy interests of litigants and third parties. (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 317.)

II. Substantive Merits of the Motion

Plaintiff argues that a protective order limiting the discovery sought by RPD No. 1 to documents related to discipline and training that he received in the course of his employment is warranted because his employee personnel file is protected by his right to privacy. Plaintiff contends that Cole MT cannot demonstrate that the discovery sought, beyond documents related to discipline and training that he received, is directly relevant to this action because he finished his work shift an hour prior to the subject incident; his claims for violation of Business & Professions Code section 25602.1 and premises liability are only tangentially related to his employment; and he is not alleging a claim for lost wages or earning capacity.

In opposition, Cole MT argues that the motion for protective order should be denied because “a substantial portion of the alleged events occurred at the place of [P]laintiff’s employment”; “the complaint arises out of an incident that occurred at [his] work, and is closely related to the sale of alcohol”; “[P]laintiff’s work records are highly probative of the issues in this case”; physical altercations and alcohol have been part of training offered by ARW and Apple Gilroy; “[P]laintiff cannot articulate any reason why his employment records should not be discoverable”; and “a protective order is already in place to ensure the confidentiality of evidence.” (Opp’n., pp. 1-3.)

In ruling upon an objection to discovery based upon privacy, courts apply a three-factor test. (See Alch v. Super. Ct. (2008) 165 Cal.App.4th 1414, 1423-1424.) The first inquiry is whether the discovery sought implicates privacy interests. (Ibid.) If permitting the discovery sought would result in a serious invasion of a reasonable expectation of privacy, then the court must determine whether the discovery sought is directly relevant to the pleadings and essential to a fair resolution of the lawsuit. (Ibid.; see also Binder v. Super. Ct. (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. Super. Ct. (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. Super. Ct. (2007) 40 Cal.4th 360, 371.)

Here, RPD No. 1 seeks the production of Plaintiff’s “entire work employment file” and does not contain any subject matter or temporal limitations. (See P’s Sep. Stmt., pp. 2-3.) It is well-established that the right to privacy extends to a person’s personnel file and employment records. (See Board of Trustees of Leland Stanford Jr. Univ. v. Super. Ct. (1981) 119 Cal.App.3d 516, 528-530; see also San Diego Trolley, Inc. v. Super. Ct. (Kinder) (2001) 87 Cal.App.4th 1083, 1097.) The production of Plaintiff’s employment file could potentially result in the disclosure of information about Plaintiff’s finances, work history, medical issues (e.g., work restrictions, reasonable accommodations, and/or requests for medical leave), and other personal and sensitive topics. Consequently, Plaintiff has established that the discovery sought would result in a serious invasion of a reasonable expectation of privacy.

With respect to the direct relevance requirement, Cole MT fails to demonstrate that the discovery sought—other than documents relating to discipline and/or training that Plaintiff received regarding physical altercations with and/or amongst customers and the service of alcohol—is directly relevant to this litigation. Documents relating to discipline and/or training that Plaintiff received regarding physical altercations with and/or amongst customers and the service of alcohol are directly relevant to this action because Plaintiff alleges that “the service of alcohol to Portela … was the result of [ARW’s] failure to provide proper instruction, guidance and training to its franchisees with regard to the proper service of alcohol” (Complaint, ¶ 22) and Cole MT asserts that ARW and Apple Gilroy provided training regarding physical altercations with and/or amongst customers and the service of alcohol. Moreover, Plaintiff does not object to the production of said documents.

To the extent RPD No. 1 seeks documents regarding any other topic, Cole MT fails to explain why such discovery is relevant to this action. Cole MT’s conclusory assertions that “a substantial portion of the alleged events occurred at the place of [P]laintiff’s employment,” “the complaint arises out of an incident that occurred at [his] work,” and “[P]laintiff’s work records are highly probative of the issues in this case” are insufficient as they fail explain how specific documents in Plaintiff’s employment file have any bearing on Plaintiff’s claims for violation of Business & Professions Code section 25602.1 and premises liability. To prevail on his claim for violation of Business & Professions Code section 25602.1, Plaintiff must prove that ARW and Apple Gilroy served, furnished, gave, or caused the sale or provision of alcohol to an obviously intoxicated minor. (See Hernandez v. Modesto Portuguese Pentecost Assn. (1995) 40 Cal.App.4th 1274, 1282.) In addition, to prevail on his claim of premises liability, Plaintiff must prove that Cole MT owed him a duty of care, Cole MT breach its duty, and the breach caused his damages. (See Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619 [premises liability is a form of negligence.].) It does not appear to the Court that documents in Plaintiff’s employment file—other than documents relating to discipline and/or training that Plaintiff received regarding physical altercations with and/or amongst customers and the service of alcohol—would tend to lead to admissible evidence regarding any element of these claims. While it is undisputed that the subject incident occurred in the parking lot outside of Plaintiff’s work, Plaintiff was not working at the time of the incident and it does not appear to the Court that there is anything other than an attenuated and tangential relationship between Plaintiff’s employment and the subject incident.

Since Cole MT fails to demonstrate direct relevance for the discovery sought (other than documents relating to discipline and/or training that Plaintiff received regarding physical altercations with and/or amongst customers and the service of alcohol), Plaintiff’s privacy objection is sustained and the Court finds that a protective order limiting RPD No. 1 to documents relating to discipline and/or training that Plaintiff received regarding physical altercations with and/or amongst customers and the service of alcohol is warranted.

For the foregoing reasons, Plaintiff’s motion for protective order is GRANTED and RPD No. 1 is limited to documents relating to discipline and/or training that Plaintiff received regarding physical altercations with and/or amongst customers and the service of alcohol.

III. Requests for Monetary Sanctions

Plaintiff’s request for an award of monetary sanctions against Cole MT and its counsel in the amount of $1,440 pursuant to Code of Civil Procedure section 2031.060, subdivision (h) is GRANTED. That statute provides that a court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2031.060, subd. (h).) Here, Cole MT was unsuccessful in its opposition to the motion, it did not act with substantial justification, and there are no other circumstances making the imposition of the sanction unjust. Thus, Plaintiff is entitled to an award of monetary sanctions. The declaration from Plaintiff’s counsel establishes that counsel spent 3 hours preparing the motion at his hourly rate of $450 and Plaintiff incurred a $60 filing fee and a $30 court reporter fee. The Court finds the time spent on the motion, the hourly billing rate, and the costs incurred to be reasonable. Accordingly, within 20 days of the date of the filing of the Order, Cole MT and its counsel shall pay Plaintiff’s counsel monetary sanctions in the amount of $1,440.

Cole MT’s request for monetary sanctions in the amount of $1,200 is DENIED. Cole MT failed to identify the person and/or party against whom monetary sanctions are sought or cite any statutory provision authorizing its request. (See Code Civ. Proc., § 2023.040 [a request for a sanction shall identify every person, party, and attorney against whom the sanction is sought and be supported by a memorandum of points and authorities].) Even if Cole MT’s request was code-compliant, it would not be entitled to an award of monetary sanctions because its opposition to the motion was unsuccessful. (See Code Civ. Proc., § 2031.060, subd. (h).)