Jose Carrillo v. OS Transport, LLC, et al.		CASE NO. 112CV237275
DATE: 29 August 2014	TIME: 9:00	LINE NUMBER: 7

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 28 August 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 29 August 2014, the motion of Plaintiff Jose Carrillo to quash deposition subpoenas on third party witness Edgar Paz-Martinez and for monetary sanctions was argued and submitted.  Defendants Hilda Andrade, HCA Management, Inc., and OS Transport, LLC (collectively “Defendants”) filed formal opposition to the motion and make a request for monetary sanctions.[1]

Background

According to the allegations of the third amended complaint (“TAC”), defendants OS Transport LLC (“OS Transport”), Oscar Sencion Sr. dba Sencion Trucking (“Sencion”),HCA Management, Inc. (“HCA”), and Hilda C. Andrade (“Andrade”) (collectively, “Employer Defendants”) employed plaintiff Jose G. Carrillo (“Carrillo”) beginning in January 2002 and continuing until June 25, 2011. (TAC, ¶¶4 – 7 and 24.) The Employer Defendants continued paying Carrillo as an independent contractor until June 2012. (TAC, ¶24.)

Carrillo alleges that he was required to work hours in excess of 8 hours per day and 40 hours per week but was not compensated with overtime pay as required by applicable wage orders and provisions of the Labor Code. (TAC, ¶¶27 – 31.)  Carrillo alleges that the Employer Defendants failed to provide him with code-compliant itemized wage statements and failed to provide him with the mandated meal and rest periods or appropriate compensation on lieu of such breaks.  (TAC, ¶¶32 – 38.)

Carrillo further alleges the Employer Defendants misclassified him as an independent contractor. (TAC, ¶¶39 – 40.) Defendant Charles Joseph Naegele (“Naegele”), attorney for the Employer Defendants, made false representations or omitted material facts in advising Carrillo and other employees that it would be in their best interest to re-classify themselves as independent contractors. (TAC, ¶41.) In reliance on Naegele’s advice, Carrillo executed documents re-classifying himself as an independent contractor. (Id.)

On June 12, 2014, plaintiff Carrillo filed the operative TAC against defendants asserting claims for:

(1)     Statutory Violations (Labor Code §§ 204, 206, 226.7, 510, 512, 1194; IWC Wage Order No. 9, §§ 3, 11 and 12;          and DLSE 45.2.1, 45.2.2, 45.3.2, 45.3.3);

(2)     Statutory Violations (Labor Code §§ 201 and 202)

(3)     Violation of Business & Professions Code § 17200

(4)     General Negligence

(5)     Fraud

(6)     Negligent Misrepresentation

(7)     Professional Negligence

Discovery Dispute

On 24 June 2014, Defendants served a request for business records on third-party Edgar Paz-Martinez. These records requests sought information related to Plaintiff’s income and tax returns, as well as that of a Jose G. Carrillo, Inc. Plaintiff objected to this subpoena and began meeting and conferring with Defendants to quash the subpoena. After communications failed to resolve the differences between parties, On 10 July 2014, Plaintiff filed the instant motion.

Meet and Confer Declaration.

A meet and confer declaration must show the moving party’s reasonable and good-faith attempts to resolve the dispute prior to filing the motion. Code Civ. Proc. §2016.040. Such a declaration should address the factors the court uses to determine reasonableness and good faith. See Stewart v. Colonial W. Agency Inc. (2d Dist. 2001) 87 Cal.App.4th 1006, 1016; Obregon v. Superior Ct. (2d Dist. 1998) 67 Cal.App.4th 424, 431. These factors include the size and complexity of the matter, the history of the litigation, the nature of the dispute, the discovery requirested, the prospects for success or any other factors that might be relevant. Stewart, 87 Cal.App.4th at 1016.

The Court has reviewed the correspondence between parties. It finds that there was a reasonable good-faith attempt to resolve the dispute without the intervention of the Court. The parties’ meet and confer obligations were satisfied.

Motion to Quash

A party may make a motion to quash a deposition subpoena based either on errors in the deposition notice or based on substantive objections. Code Civ. Proc. §1987.1(a). Such objections include that the subpoena seeks information that is outside of the scope of discovery. See Code Civ. Proc. §2017.010. The scope of discovery is limited to information that is relevant to the unprivileged subject matter involved in the pending action, or to the determination of any motion made in that action. Code Civ. Proc. §2017.010.

A motion to quash a deposition subpoena seeking the production of documents or other tangible things must include a separate statement. Cal. Rules of Court, rule 3.1345(e). This separate statement must identify the things requested and the movant’s objections to them. Weil, Civil Procedure Before Trial, ¶ 8:602.5.

As an initial matter, Plaintiff did not include a separate statement in his motion. The Court could deny the motion on those grounds alone. However, due to the importance of the issues presented, and the fact that the Court has enough information to make a decision, the Court will consider the motion.

The subpoena at issue has six items that Plaintiff challenges. Items 2, 4, and 6 relate to Jose G. Carrillo, Inc. (“Carrillo, Inc.”). Plaintiff does not challenge the subpoena in his memorandum as to Carrillo, Inc., other than mentioning that Carrillo, Inc. exists. As a result, the Court will deny the motion to quash as to those items.

Items 1, 3, and 5 seek documents evidencing income earned by Plaintiff, accounts held by Plaintiff, and state and federal tax returns. Plaintiff states in his memorandum of points and authorities that disclosure would violate his wife’s privacy interest. However, Plaintiff offers no evidence, such as a declaration, that he is married and that he and his wife file jointly. The Court can only make a decision based on the evidence before it. Plaintiff’s argument as to his wife’s privacy interest must fail.

Plaintiff next cites Webb v. Standard Oil (1957) 49 Cal.2d 509, 513 for the proposition that tax returns are privileged. The Court agrees with the proposition, but notes that the privilege can be waived. See Schnaebel v. Superior Ct. (1993) 5 Cal.4th 704, 721. Plaintiff has put his tax payments and returns at issue by claiming damages resulting from a higher tax liability due to his tax bracket placement. Plaintiff claims that Defendants can simply ask Plaintiff what additional liability he paid, but that is insufficient. Plaintiff’s bare statement that he paid more, and even how much he paid, can and should be able to be challenged by other evidence. So long as his tax liability is at issue, Plaintiff has waived the privilege to not produce his tax returns.

For similar reasons, Plaintiff’s argument that his privacy rights are impinged if his accountant is required to produce these documents must fail. Plaintiff raises the argument that production of these records violates his right to privacy. However, Plaintiff fails to cite authority for the proposition that individuals have a right to privacy. See, e.g., Britt v. Superior Ct. (1978) 20 Cal.3d 844; Hooser v. Superior Ct. (4th Dist. 2000) 84 Cal.App.4th 997. Plaintiff instead appears to argue that the information is private because it is irrelevant. As the Court notes, supra, Plaintiff himself put his tax liability at issue. These documents are relevant.

However, the Court believes that the information should not be released to anyone outside of this litigation and will leave it to the parties to craft an appropriate protective order.

Plaintiff’s motion to quash the deposition subpoena to produce records of Edgar Paz-Martinez is DENIED. Enforcement of the deposition subpoena is stayed for 30 days to allow time for the parties to create a mutually agreed upon protective order.

Monetary Sanctions

Plaintiff makes a request for monetary sanctions against Defendants and Defendants’ counsel. Because Plaintiff was unsuccessful in his motion, sanctions are inappropriate.

Plaintiff’s request for monetary sanctions is DENIED.

Defendant makes a request for monetary sanctions against Plaintiff, citing Code of Civil Procedure Section 1987.2. Section 1987.2 allows the court, in its discretion, to award sanctions for the cost of defending a motion to quash. Defendant’s counsel alleges he spent 19.28 hours on research, drafting of meet and confer communications, and drafting of the opposition to the instant motion. The Court does not award sanctions for time spent meeting and conferring, as those efforts should be done regardless of court intervention. There was no individual breakdown of time spent on the motion itself. The Court will decline to award sanctions.

Defendants’ request for monetary sanctions is DENIED.

Conclusion and Order

Plaintiff’s motion to quash the deposition subpoena to produce records of Edgar Paz-Martinez is DENIED. Enforcement of the deposition subpoena is stayed for 30 days to allow time for the parties to create a mutually agreed upon protective order.

Plaintiff’s request for monetary sanctions is DENIED.

Defendants’ request for monetary sanctions is DENIED.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

 

[1] Defendant’s opposition was 13 pages long and did not contain a table of contents. See Cal. Rules of Court, rule 3.1113. Nevertheless, the Court will consider all material presented in the opposition.