Case Number: EC067382 Hearing Date: August 10, 2018 Dept: A

Mendez v Mendoza

MOTION FOR PROTECTIVE ORDER

Calendar: 10

Case No: EC067382

Hearing Date: 8/10/18

Action Filed: 11/16/17

Trial: Not set

MP: Defendant Armando Mendoza

RP: Plaintiff Fausto Mendez, Jr.

ALLEGATIONS:

Plaintiff Fausto Mendez, Jr. dba Advanced Veterinary Analysis alleges that he hired Defendant Armando Mendoza on January 1, 2006 to operate, manage, and control the financial records of Advanced Veterinary Analysis in an executive capacity. On April 15, 2012, Armando Mendoza hired his wife, Defendant Blanca Castro. Plaintiff alleges that Armando Mendoza and Blanca Castro were unlawfully present in the United States and presented fraudulent social security cards and work authorizations to Plaintiff. He alleges that from March 10, 2010 to November 5, 2017, Defendants Armando Mendoza, Blanca Castro, Denisse Mendoza, and Irving Neil Mendoza routinely and fraudulently reported more hours on their timecards than worked, and were consequently overpaid. Plaintiff also alleges that during this time, Armando Mendoza made at least 28 cash withdrawals, totaling $57,093.34 for his own personal use; Defendants established and operated a dog-breeding and kennel business out of Plaintiff’s office and interfered with his business; paid their personal housing landlord at least $60,000.00 from Plaintiff’s funds; stole Plaintiff’s equipment; and engaged in other wrongful acts.

The complaint, filed November 16, 2017, alleges causes of action for: (1) conversion; (2) trespass to chattels; (3) intentional fraud; (4) breach of duty of reasonable care; (5) breach of duty of undivided loyalty; (6) breach of duty of confidentiality; (7) concealment fraud; (8) intentional interference with prospective economic relations; (9) misappropriation of trade secrets; (10) trade libel; (11) defamation per se; (12) civil conspiracy; and (13) aiding and abetting tort.

On December 27, 2017, Armando Mendoza and Blanca Castro filed a cross-complaint against Plaintiff for: (1) failure to pay earned wages; (2) failure to pay wages in a timely manner; (3) waiting time penalties; (4) unfair competition; (5) intentional deceit; (6) defamation per se; and (7) IIED.

RELIEF REQUESTED:

Armando Mendoza moves for a protective order so that he may designate certain discovery responses as “CONFIDENTIAL” and to limit the time period of certain written discovery requests propounded by Plaintiff.

DISCUSSION:

A. Legal Standard

When interrogatories or the production of documents have been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order. (CCP §§2030.090(a), 2031.060(a).) This motion shall be accompanied by a meet and confer declaration.

The Court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (CCP §§2030.090(b), 2031.060(b).) This protective order may include an order that the interrogatories need not be answered or documents need not be produced or made available at all, and that the responses be made only on specified terms and conditions. (CCP §2030.090(b)(1), (4); CCP §2031.060(b)(1), (4).)

B. Analysis of Merits

Armando Mendoza seeks a protective order pursuant to CCP §2030.090(b)(1) and (4), and CCP §2031.060(b)(1). Specifically, he seeks a protective order from special interrogatories, set one (“SROG”), and request for production of documents, set one (“RPD”), regarding: (1) his immigration status and/or citizenship and/or the admission or denial of facts that evidence/refer/relate to his immigration status or citizenship; (2) private employment information from January 1, 2006 to the present; and (3) private financial information (including information from third parties). He requests that the production of any documents be conditioned and restricted by a protective order, designating them as “CONFIDENTIAL” based on his privacy rights, and that the requests be limited to 10 years prior to his severance with Plaintiff (i.e., September 11, 2007 to September 11, 2017).

He argues that he will produce the records upon the Court granting this motion for protective order to protect his immigration and/or citizenship information, private employment information, and private financial information.

1. Meet and Confer

Pursuant to subsection (a) of CCP §§2030.090 and 2031.060, the motion for protective order must be accompanied by a meet and confer declaration.

On February 13, 2018, Plaintiff propounded the SROG and RPD on Armando Mendoza. On April 6, 2018, Defendants served their objections and responses to the SROG and RPD. (Cabrera Decl., ¶¶15-16.)

On April 20, 2018, Plaintiff’s counsel sent a meet and confer letter regarding Armando Mendoza’s responses, and again sent a letter on April 26, 2018. (Id., ¶¶17, 19.) On April 30, 2018, defense counsel states that he sent a letter to Plaintiff’s counsel, requesting that the discovery requests be limited and suggesting a protective order to maintain the confidentiality of the information. (Id., ¶20, Ex. 25.) On May 21, 2018, defense counsel sent Plaintiff another letter addressing the discovery requests, raising privacy concerns. (Id., ¶21, Ex. 26.) On May 14, 2018, defense counsel states that the parties again met and conferred regarding immigration status and financial privacy. (Id., ¶22.) On May 23, 2018, defense counsel sent a letter to Plaintiff’s counsel, informing him that he was working on further responses. (Id., ¶23.) On May 25, 2018, Armando Mendoza served supplemental objections and responses, and on May 30, 2108, served responsive documents. (Id., ¶¶24-25.) Following this, the parties continued to meet and confer about the responses and objections, and Plaintiff filed 4 motions to compel further responses (set for hearing on August 17, 2018).

The meet and confer efforts that the parties’ counsel engaged in are adequate to show that they attempted to informally resolve this matter prior to Armando Mendoza filing this motion.

2. Timeliness

When interrogatories or the production of documents have been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order. (CCP §§2030.090(a), 2031.060(a).)

Here, Armando Mendoza has promptly moved for a protective order. The SROG and RPD were propounded on February 13, 2018, Plaintiff filed motions to compel further responses on June 15, 2018, and Armando Mendoza filed this motion on July 19, 2018. In opposition, Plaintiff argues that Armando Mendoza did not “promptly’ move to file this motion. However, the code states that Armando Mendoza may promptly move for a protective order; the code does not suggest that a failure to “promptly” file a motion for protective order bars Armando Mendoza’s ability to do so. Rather, the Court finds that Armando Mendoza reasonably and promptly filed this motion after attempts to resolve this matter informally.

3. Good Cause

Armando Mendoza argues that there is good cause to grant this motion for protective order. By way of his request for protective order, Armando Mendoza seeks to respond to the discovery, but designate a “CONFIDENTIAL” status over the discovery responses so that the information may not be misused.

Armando Mendoza relies on Ibarra v. Superior Court (2013) 217 Cal.App.4th 695, 706, arguing that when there is a threat to safety and security of a party, a protective order is proper. In Ibarra, the Court of Appeal found that a protective order arising from their disclosure of photographs was proper to protect officers/guards because such photographs displayed to inmates may generate anger, resentment, and attempts at retribution against them regardless of whether the allegations against them are true. However, Ibarra is factually distinguishable from this action as it involves protections for police officers, and is thus not applicable.

Next, Armando Mendoza relies on Evidence Code, §351.3, arguing there is good cause to protect the information sought in the discovery requests. Evidence Code, §351.3 states that in a civil action, “evidence of a person’s immigration status shall not be disclosed in open court by a party or his or her attorney unless the judge presiding over the matter first determines that the evidence is admissible in an in camera hearing requested by the party seeking disclosure of the person’s immigration status.” Based on section 351.3, admissibility concerns may be implicated if Armando Mendoza’s immigration status were revealed in future motions, hearings, and the trial. While Evidence Code, §351.3 does not necessarily bar the discovery of such information, it affects the admissibility of such evidence. Nevertheless, to protect such privacy concerns in immigration status, the Court will grant the motion for protective order as they relate to Armando Mendoza’s immigration status.

In addition, there is a legally recognized privacy interest in one’s personal financial information. (International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Sup. Ct. (2007) 42 Cal. 4th 319, 330.) Privacy concerns aside, Armando Mendoza states in the motion that he is willing to produce any documents upon the condition that they be subject to the protective order. As such, the Court will grant the motion as to this category of discovery as well.

Armando Mendoza also seeks a protective order for documents regarding his employment and personnel records from employers other than Plaintiff. Plaintiff’s discovery requests without a time limitation are impermissibly broad and Plaintiff has not shown how all of these documents would be particularly relevant to this action. Thus, the Court will impose a protective order over the employment information such that only employment information 5 years prior to Plaintiff’s employment of Armando Mendoza are discoverable (i.e., January 1, 2001 to September 11, 2017). The Court notes that Armando Mendoza requests that the discovery be limited to 10 years prior to his severance (i.e., September 11, 2007 to September 11, 2017), but Plaintiff hired Armando Mendoza in January 2006; thus, by cutting discovery off in September 2007 would not provide Plaintiff with responsive documents.

Finally, in opposition, Plaintiff argues that he is entitled to discovering the information in the SROG and to the production of documents as requested in the RPD because the discovery sought is directly relevant to his claims against Armando Mendoza. Thus, Plaintiff’s main concern in opposing the protective order is that he will not receive discovery responses. However, as disused above, Armando Mendoza states that he will produce the records to Plaintiff regarding his immigration status and citizenship, his private employment, and his private financial information if a protective order is granted. Thus, Plaintiff is not prejudiced by the granting of this motion as he will receive discovery responses and documents from Armando Mendoza.

RULING:

The Court will grant the motion for protective order, such that documents produced by Armando Mendoza regarding his immigration status, employment files, and finances may be produced under a “CONFIDENTIAL” designation. Armando Mendoza should prepare and separately lodge with the Court a proposed protective order.

The Court will grant Armando Mendoza’s request for sanctions in the amount of $1,600.00.

The Court will deny Plaintiff’s request for sanctions as his opposition was not meritorious.

In light of the ruling above, the Court will continue Plaintiff’s motions to compel further responses set for August 17, 2018 to a later date in order to provide time for Armando Mendoza and Defendants to provide discovery requests and produce documents, as this may render the motions to compel further moot.