Case Number: BC533971    Hearing Date: September 02, 2014    Dept: 93

Superior Court of California
County of Los Angeles
Department 93

JESS JIRO NAKASUJI,

Plaintiff(s),
v.
JOEL R. YOUNG, et al.,

Defendant(s). Case No.: BC533971

Hearing Date: September 2, 2014

[TENTATIVE] ORDER RE:
DEFENDANT JOEL R. YOUNG’S MOTION TO QUASH THE BUSINESS RECORDS DIRECTED TO CONSOLIDATED WEST DISTRIBUTING, INC. AND REQUEST FOR SANCTIONS OF $1,410.00

Defendant Joel R. Young’s Motion to Quash the Business Records Directed to Consolidated West Distributing, Inc. (“Consolidated West”) is GRANTED in part, as set forth below, and Sanctions are awarded in the amount of $810, to be paid within 20 days of service of this Order. Consolidated West is ordered to produce the documents described below as to which the Motion is denied within 20 days of service of this Order.

Evidentiary Objections

Plaintiff’s evidentiary objections are ruled on as follows:

To Hackett Decl.: # 1 overruled; #s 2, 3 (as to reference to police report), 4 sustained

Request for Judicial Notice

Pursuant to Cal. Evidence Code Section 452(h), the Court grants Plaintiff’s request for judicial notice of:

1. Statement of Information (Domestic Stock and Agricultural Cooperative Corporations) of Consolidated West Distributing, Inc., that was filed with the Secretary of State of California on November 30, 2010;

2. Statement of Information (Domestic Stock and Agricultural Cooperative Corporations) of Consolidated West Distributing, Inc., that was filed with the Secretary of State of California on December 16, 2013.

Discussion

Defendant moves to quash the deposition subpoena, issued by Plaintiff on April 11, 2014 to Consolidated West Distributing, Inc. (“Consolidated West”), which seeks:

1. All documents evidencing insurance policies issued to Consolidated West Distributing, Inc., covering owned and non-owned vehicles in effect on Jun 23, 2014.

2. All documents evidencing contracts between Consolidated West Distributing, Inc., and Joel Young, pertaining to the job duties of Joel Young.

3. All documents evidencing Consolidated West Distributing, Inc.’s arrangements with Joel Young regarding the use of Joel Young’s vehicle(s).

4. All documents evidencing Consolidated West Distributing, Inc.’s arrangements with Joel Young’s relating to automobile reimbursement.

5. All documents evidencing Consolidated West Distributing, Inc.’s arrangements with Joel Young relating to entertainment reimbursement.

6. All documents evidencing calendars kept by Consolidated West Distributing, Inc., relating to Joel Young.

7. All documents evidencing Consolidated West Distributing, Inc.’s cellular telephone bill relating to Joel Young.

8. Personnel file of Joel Young.

9. All contracts between Joel Young and Consolidated West Distributing, Inc., regarding compensation, including auto reimbursement, business and entertainment reimbursement.

(Motion, Hackett Decl. (“Hackett Decl.”) Exh. E.)
Legal Standard

A motion to quash a deposition subpoena may be made per CCP § 1987.1. Section 1987.1 states: “When a subpoena requires the attendance of a witness or the production of [documents], the court, upon motion reasonably made by the party…may make an order quashing the subpoena entirely, modifying it or directing compliance with it…including protective orders.” “The court may make any other order as may be appropriate to protect the parties, the witness, or the consumer from unreasonable or oppressive demands including unreasonable violations of a witness’s or consumer’s right of privacy.” (CCP §§ 1987.1, 1985.3.)

Background

This action arises out of a motor vehicle accident that occurred on June 24, 2013 at 10:03 p.m. on Anaheim Road near Iroquois in Long Beach, California. (Motion, Hackett Decl. (“Hackett Decl.”), Exh. C, Defendant’s Responses to Form Interrogatories (“Responses” or “Response”), No. 20.1., p. 21.) The Complaint is brought solely against Defendant Joel Young as an individual, and not against his employer, Consolidated West. (Hackett Decl., Exh. A.) The Complaint does not allege that the accident was related to Defendant’s work for Consolidated West.

Defendant moves to quash on the basis that the deposition subpoena directed to his employer is not calculated to lead to admissible evidence, is overly broad and harassing, violates his right of privacy and seeks disclosure of confidential trade secrets. Defendant notes that he is the registered owner of the vehicle involved in the accident. (Hackett Decl., Exh. C, Response No. 20.2, p. 21, and Exh. D.) Further, in responding to discovery, Defendant stated: “Responding party’s vehicle at the time of the collision was used strictly for personal use.” (Id., Response No. 17.1, p. 20.) Defendant also states in his Responses to Interrogatories that when the accident occurred, he “was driving from his boat/home parking lot in Marina del Rey to the Long Beach Yacht Club.” (Hackett Decl., Exh. C, Response No. 20.3, p.21.)

Plaintiff argues that he should be allowed to propound discovery to determine whether Defendant was acting in the course of his employment or otherwise giving an incidental benefit to his employer at the time of the accident, and that he should not be required “to take the defendant’s word that this was strictly personal business.” (Opposition to Motion to Quash, at 6.). He points to the fact that the vehicle registration, while showing that it was registered to Defendant, uses the address of Consolidated West. (Hackett Decl., Exh. D.)

At the time of the accident, Defendant was a “casual employee and co-owner” of Consolidated West. (Response No. 2.6, p.3.) As of the filing of the Statement of Information with the California Secretary of State in November 2010, Defendant was also one of three directors of Consolidated West. (See Plaintiff’s Ex. 1.)

Defendant does not deny that at the time of the accident he was employed by and a director of Consolidated West. In the Motion, Defendant states that he is the Vice President of Consolidated West, and works two to three days per week for the company. (Motion, at 5.) However, Defendant’s responses to interrogatories that he was using his own car for personal use at the time of the accident – at 10:03 p.m. in the evening – does support his position that the car was used for personal business and that his employer has nothing to do with issues involved in this lawsuit about the car accident.

Plaintiff argues that “[a]s recently as August 7, 2014 the Defendant represented Consolidated West Distributing, Inc., at a charity function. It is apparent that he is the face of the company.” (Opposition, at 1.) However, no support is provided for these statements, and the Court cannot consider them as evidence. Accordingly, the only evidence to support Plaintiff’s request is the fact that his vehicle, while registered to him, uses the corporate address of Consolidated West.

Legal Discussion

Plaintiff argues that his subpoena “targets information directly relating to whether Consolidated West Distributing, Inc. reimbursed or paid for the vehicle its use or its insurance and whether there was an incidental benefit to the Defendant’s company.” (Opposition, at 8.) In support of his position, Plaintiff cites to cases that discuss the right to privacy generally, but not in the context of a subpoena to the third party employer of a party to a lawsuit. For example, in Hill v. National Collegiate Athletic Ass’n (1994) 7 Cal.4th 1, the issue was whether the intercollegiate athletic association’s drug testing program violated the privacy rights of the student athletes.

When seeking information protected by the right of privacy, Defendant must show that the records are directly relevant to the case. (Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 524-25.) Once the Court determines that the records are directly relevant to the action, it must carefully balance the need for discovery against the right of privacy. (Id. at 525.) Finally, the party seeking the discovery must show that the information cannot be obtained through depositions or non-confidential sources, and if discovery is allowed it must be minimally intrusive. (Harding Lawson Assocs. v. Superior Court (1992) 7 Cal.App.4th 1008, 1014; Life Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640, 651.)

In Board of Trustees, in considering a subpoena for employment records, the Court recognized both the fundamental right to privacy, and also the state interest in “facilitating the ascertainment of truth in connection with legal proceedings.” (119 Cal.App.3d at 525.) The Court held:

“In an effort to reconcile these sometimes competing public values, it has been adjudged that inquiry into one’s private affairs will not be constitutionally justified simply because inadmissible, and irrelevant, matter sought to be discovered might lead to other, and relevant, evidence. . . . When compelled disclosure intrudes on constitutionally protected areas, it cannot be justified solely on the ground that it may lead to relevant information. . . . 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.’”

(Id.)(citations omitted.) Based on these principles, the scope of any disclosure must be “narrowly circumscribed.” (Id. at 526.)

In this case, the subpoena seeks private personnel information for Defendant and private corporate information from Confidential West. While this case differs from Life Technologies in that the personnel records at issue here are the records of a party’s employment, and not a third party, they still raise protected privacy interests that must be addressed. Moreover, under Plaintiff’s argument, any plaintiff in a motor vehicle accident would be allowed to obtain the records of the defendant’s employer to investigate whether the accident occurred during the course and scope of the defendant’s employment. Contrary to this position, Plaintiff must make a showing of relevance as to the requested records in order to obtain their production.

This Court finds that Plaintiff has not made a sufficient showing of need for most of the requested records to support his broad subpoena. In particular, Plaintiff has not taken the deposition of Defendant nor has he propounded any discovery to determine the scope of his employment with of Consolidated West. The Court rules as to each request below.

1. All documents evidencing insurance policies issued to Consolidated West Distributing, Inc., covering owned and non-owned vehicles in effect on Jun 23, 2014.

This request is moot because Defendant has provided Plaintiff with a copy of Consolidated West’s Multi Commercial Insurance Policy from 2013-2014 and 2014-2015. (Opp., Manuwal Decl. (“Manuwal Decl.”), Exh. 2.)

2. All documents evidencing contracts between Consolidated West Distributing, Inc., and Joel Young, pertaining to the job duties of Joel Young.

This request is overly broad, and likely to invade the privacy interests of both Defendant and Consolidated West. Moreover, Plaintiff should seek less intrusive means of obtaining this discovery before seeking this broad category of documents. The Motion is granted as to this request.

3. All documents evidencing Consolidated West Distributing, Inc.’s arrangements with Joel Young regarding the use of Joel Young’s vehicle(s).

The Motion to Quash is denied as to this request, but the scope is limited to the vehicle involved in this accident and the time frame of the accident. Documents that reflect the arrangement between Consolidated West and Defendant with respect to use of Defendant’s vehicle for his employment in effect at the time of the accident is appropriately tailored to lead to the discovery of relevant and admissible evidence as to the purposes for which, if any, Defendant used his personal vehicle for employment purposes.

4. All documents evidencing Consolidated West Distributing, Inc.’s arrangements with Joel Young’s relating to automobile reimbursement.

The Motion to Quash is granted in part as to this request, denied in part. The Court limits production in response to this request to documents regarding requests for reimbursement by Defendant for use of his personal vehicle involved in this accident for the date of the accident.

5. All documents evidencing Consolidated West Distributing, Inc.’s arrangements with Joel Young relating to entertainment reimbursement.

The Motion to Quash is granted as to this request, which is overly broad and not relevant to the issues involved in this action.

6. All documents evidencing calendars kept by Consolidated West Distributing, Inc., relating to Joel Young.

The Motion to Quash is granted as to this request, which is overly broad and not relevant to the issues involved in this action.

7. All documents evidencing Consolidated West Distributing, Inc.’s cellular telephone bill relating to Joel Young.

The Motion to Quash is granted as to this request, which is overly broad and not relevant to the issues involved in this action.

8. Personnel file of Joel Young.

The Motion to Quash is granted as to this request, which is overly broad and not relevant to the issues involved in this action.

9. All contracts between Joel Young and Consolidated West Distributing, Inc., regarding compensation, including auto reimbursement, business and entertainment reimbursement.

The Motion to Quash is granted as to this request, which is overly broad and not relevant to the issues involved in this action, except to the extent the Court is ordering production as to number 4 above.

Sanctions

Code of Civil Procedure section 1987.2 (a) provides that in “in making an order pursuant to motion made under subdivision (c) of Section 1987 or under 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.”

Defendant seeks $1,410 in sanctions for the drafting of the Motion and time spent at the hearing. An award of sanctions under Section 1987.2 is discretionary. In this case, the Court finds that Plaintiff failed to obtain discovery in a manner designed to minimize the invasion of the privacy interests of Defendant and Consolidated West by, for example, taking the deposition of defendant or propounding interrogatories to determine Defendant’s job responsibilities and the scope of his employment prior to issuing a broad subpoena.

The breadth of the subpoena, in seeking the entire personnel file of Defendant, all contracts between Defendant and Consolidated West regarding compensation, all cell phone records and all calendars kept by the company related to the activities of Defendant, among other requests, are overly broad and not tailored to seek the discovery of relevant information. Given the minimal showing made by Plaintiff as to the relevance of these documents, and the limited documents that the Court is ordering to be produced, the Court finds that the subpoena was “oppressive” and that sanctions are appropriate.

However, the amount of sanctions requested is excessive. The Court awards $810 in sanctions against Plaintiff and his attorneys (five hours of attorney time at $150 per hour plus $60 filing fee). (Hackett Decl. ¶11.)

Defendant is ordered to give notice.

Dated: September 2, 2014

_______________________
Hon. Gail Ruderman Feuer
Judge of the Superior Court