Case Number: 19STCV10807 Hearing Date: December 19, 2019 Dept: 4A

Motion to Quash Subpoenas (x8)

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On March 29, 2019, Plaintiff Ban P. Metti (“Plaintiff”) filed a complaint against Defendants City of Los Angeles, ABM Industries Incorporated, ABM Government Services, Inc., ABM General Services, Inc., and ABM Global Facility Services alleging a dangerous condition of public property, negligence, and premises liability for a trip-and-fall that occurred on June 2, 2018.

On March 31, 2019, Plaintiff filed an amendment to the complaint renaming Doe 1 as Defendant ABM Aviation, Inc.

On August 5, 2019, the Court dismissed the complaint as to Defendants ABM Industries Incorporated, ABM Government Services, Inc., ABM General Services, Inc., and ABM Global Facility Services.

On November 12, 2019, Plaintiff filed a motion to quash eight deposition subpoenas pursuant to California Code of Civil Procedure section 1987.1.

Trial is set for September 25, 2020.

PARTY’S REQUESTS

Plaintiff asks the Court to quash one deposition subpoena Defendant ABM Aviation, Inc. (“ABM”) issued to Plaintiff’s employer and another seven deposition subpoenas ABM issued to medical providers for being overbroad, seeking irrelevant information, and invading Plaintiff’s right to privacy.

Plaintiff also requests that the Court impose $5,310 in monetary sanctions against Defendants ABM and City of Los Angeles (“City”) to cover its expenses in bringing this motion.

City asks the Court to issue $990 in monetary sanctions against Plaintiff for having to oppose this motion despite not issuing the subpoenas that Plaintiff seeks to quash.

LEGAL STANDARD

California Code of Civil Procedure section 1987.1, subdivision (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.4th 575, 582-583.)

In making an order pursuant to California Code of Civil Procedure section 1987.1, “the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code Civ. Proc. § 1987.2, subd. (a).)

DISCUSSION

“[P]laintiffs are ‘not obligated to sacrifice all privacy to seek redress for a specific [physical,] mental or emotional injury’; while they may not withhold information which relates to any physical or mental condition which they have put in issue by bringing [a] lawsuit, . . . they are entitled to retain the confidentiality of all unrelated medical or psychotherapeutic treatment they may have undergone in the past.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 864 (citation and footnote omitted).) However, “. . . privacy interests may have to give way to [an] opponent’s right to a fair trial. Thus courts must balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842.)

On October 18, 2019, ABM issued subpoenas to (1) Michelle’s Bakery, (2) Medical Clinic of Redlands, (3) Special Care Clinic, (4) HAAS Spine & Orthopaedics, Inc., (5) SimonMed, (6) WestStar Physical Therapy, (7) Bijan Zardouz, M.D., and (8) American Spine Group. (Nalbandyan Decl., ¶ 2, Exh. A.)

The subpoena to Michelle’s Bakery seeks all of Plaintiff’s employment documents. (Id., p. 18.) The subpoenas to Medical Clinic of Redlands, Special Care Clinic, HAAS Spine & Orthopaedics, Inc., SimonMed, WestStar Physical Therapy, Bijan Zardouz, M.D., and American Spine Group seek all of Plaintiff’s medical and billing documents. (Id., pp. 23, 28, 34, 39, 44, 49, 53.) Plaintiff is not making a loss of earnings claim. (Nalbandyan Decl., ¶ 6.)

ABM argues the subpoena issued to Michelle’s Bakery is proper because Plaintiff has represented to one or more doctors that she missed two to three weeks of work following the incident because of her injuries. (Salomone Decl., ¶ 5.) According to ABM, the requested documents are relevant because they relate to the severity of the injuries sustained, Plaintiff’s truthfulness, and the opinions of Plaintiff’s doctors on the nature and severity of Plaintiff’s injuries and their diagnosis and prognoses. (Ibid.) ABM suggests this subpoena be limited to the six months following the incident. (Ibid.) Even if the temporal scope of the subpoena were limited, however, a request for all of Plaintiff’s employment records would sweep way beyond those documents necessary to reveal the extent of any medical leave Plaintiff took after the accident.

Plaintiff is claiming injuries to her neck, shoulders, knees, legs, left foot, and lower back. (Salomone Decl., ¶ 2.) Plaintiff is also claiming injuries consisting of headaches and dizziness. (Ibid.) ABM implicitly argues that the subpoenas do not need to be limited as to Plaintiff’s affected body parts because “Plaintiff is claiming injury literally from her head to her feet.” (Ibid.) ABM’s argument is unconvincing. Plaintiff is not claiming injuries to a variety of body parts, including her right foot and upper back. Further, apart from her orthopedic and neurological injuries, Plaintiff has not put at issue her gynecological system or any other physiological conditions. ABM cannot seek documents involving Plaintiff’s entire medical history without invading her privacy rights, simply because Plaintiff alleges multiple injuries up and down her body.

ABM also argues that because it appears that the treatment Plaintiff received at Special Care Clinic, HAAS Spine & Orthopaedics, Inc., SimonMed, WestStar Physical Therapy, Bijan Zardouz, M.D., and American Spine Group was exclusively for the subject incident, there is no need to limit the scope of the subpoenas issued to to these providers. (Salomone Decl., ¶ 3.) The Court disagrees. ABM does not know for a fact that Plaintiff’s medical treatment with these providers was exclusively for injuries sustained from the trip-and-fall that gave rise to this action. ABM’s proposed produce-and-see approach to find out what documents are in Plaintiff’s files with these providers does not comport with Plaintiff’s right to privacy. As such, these subpoenas are overbroad as they are not limited as to duration or body part.

The Court finds the subpoenas are overbroad and invade Plaintiff’s privacy but should not be entirely quashed. Rather, the subpoenas should be limited by a protective order. The subpoena issued to Michelle’s Bakery should be restricted to documents reflecting Plaintiff’s time off from work during the month following her accident. Documents relating to Plaintiff’s pay and other employment matters are not relevant or discoverable.

The remaining subpoenas should be limited to a protective order with the same limiting terms that Plaintiff offered to ABM. (See Nalbandyan Decl., ¶ 10.) Namely, these subpoenas shall be limited to only the body parts as to which Plaintiff claims injuries (that is, with respect to her neck, shoulders, knees, legs, left foot, lower back, headaches and dizziness) for treatment she received from 10 years prior to the incident to the present.

Plaintiff’s request for $5,310 in monetary sanctions consists of 4 hours in reviewing subpoenas and filing the moving papers and 3 hours in reviewing an opposition, drafting a reply, and appearing at the hearing at rate of $750 an hour, plus one $60 filing fees. (Nalbandyan Decl., ¶¶ 8-11.) This amount is unreasonable. The moving, opposing, and reply papers were straightforward and this relatively simplistic matter is more properly handled by an entry-level associate. Rather, the Court finds $860 ($200/hr. x 4 hrs. plus one $60 filing fee) to be a reasonable amount of sanctions to be imposed against ABM and its counsel of record for their abuse of the discovery process.

There is no basis for Plaintiff’s motion against City. As such, City’s request for sanctions in opposing the motion is properly granted. City’s request for $990 in monetary sanctions consists of .8 hours in preparing the opposition and 2.5 hours in appearing at the hearing at a rate of $300 per hour. (Carr Decl., ¶ 9.) The Court finds this amount to be unreasonable. City’s attorney is located in Pasadena, a mere 10.5 miles from Spring Street Courthouse. Further, this reply should have also been handled by an entry-level associate. Accordingly, the Court finds $400 for 2 hours at a rate of $200 an hour to be a reasonable of sanctions to imposed against Plaintiff and her counsel of record for filing this motion against City.

The motion is GRANTED in part and DENIED in part.

The Court orders the subpoena ABM has issued to Michelle’s Bakery shall be limited by a protective order. This subpoena shall be limited to documents showing time Plaintiff took off from work from June 2, 2018 to July 1, 2018. No information showing Plaintiff’s compensation or other employment matters shall be produced.

The Court also orders the subpoenas ABM has issued to Medical Clinic of Redlands, Special Care Clinic, HAAS Spine & Orthopaedics, Inc., SimonMed, WestStar Physical Therapy, Bijan Zardouz, M.D., and American Spine Group shall be limited by a protective order. These subpoenas shall be limited to documents relating to Plaintiff’s complaints of injuries to her neck, shoulders, knees, legs, left foot, and lower back. These subpoenas shall also be limited to complaints of headaches and dizziness. The temporal scope of the subpoenas shall be limited to documents dated from June 2, 2008 to the present day.

ABM and its counsel of record are ordered to pay $860 to Plaintiff within 30 days of this order.

Plaintiff and her counsel of record are ordered to pay $400 to City within 30 days of this order.

Plaintiff is ordered to give notice of this ruling.