Case Number: BC673021 Hearing Date: May 06, 2019 Dept: 4A

Motion to Quash a Subpoena

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

BACKGROUND

On August 18, 2017, Plaintiff Ruben Nazaryan (“Plaintiff”) filed a complaint against Defendants Bethany Woods South Homeowners Association and Encore Property Management (“Defendants”). The complaint alleged general negligence and premises liability arising from a fall on or around stairs and railings that occurred on June 8, 2016.

On February 28, 2019, Plaintiff filed a motion to quash a deposition subpoena issued to his prior employer because Plaintiff is not pursuing a loss of earnings claim.

Trial is set for June 20, 2019.

PARTIES’ REQUESTS

Plaintiff requests that the Court quash Defendants’ deposition subpoena for all documents and records from the custodian of records at Rooter Master Plumbing Services.

Plaintiff also requests the Court to impose $2,100.00 in monetary sanctions against Defendants and their attorneys of record for costs and fees incurred in bringing this motion.

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).) The mere allegation of pain and suffering does not render all records pertaining to the plaintiff’s mental condition as discoverable, as such documents need to still be directly relevant to the mental condition at issue. (See e.g. Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1015-1020.)

Plaintiff argues the subpoena for any and all records pertaining to Plaintiff from his past employer, Rooter Master Plumbing Services, violates Plaintiff’s right to privacy because Plaintiff is not pursuing a loss of earnings claim in this matter. (Motion, p. 5:8-5:17.)

Defendant argues that the documents are discoverable as it is unclear whether Plaintiff was acting in the course and scope of his employment when the incident occurred. (Opposition, p. 4:16-5:3.) Namely, Plaintiff is a plumber, he was completing jobs for his employer before the incident, he drove his work truck to a friend to complete a free job before returning the truck and equipment, and he told his boss of this plan. (Ibid.) Defendant argues that Rooter Master’s records can corroborate these claims.

Defendant also argues that the requested documents are discoverable because the records clarify the number of hours that Plaintiff worked after the incident and, thus, may be relevant to the extent of his damages. (Opposition, p. 5:6-5:14.) Defendant also argues that these records can help clarify the extent of Plaintiff’s prior surgeries to body parts at issue in this action. (Opposition, p. 5:15-5:18.)

The Court finds this subpoena to be intrusive upon Plaintiff’s right to privacy and without sufficient justification as to why the sought records are discoverable. As both parties concede, Plaintiff is not seeking damages for lost wages. Accordingly, this subpoena, which seeks any and all records from Plaintiff’s prior employer pertaining to Plaintiff, is immediately suspicious.

Defendants’ justification for this subpoena does not alleviate the Court’s suspicion. First, there is no explanation why Defendants would need all documents pertaining to Plaintiff from his prior employer even if the Court were to agree with Defendants’ claimed need for certain discovery. The list of documents sought and their temporal scope are far beyond those that would be necessary to explore Defendants’ investigatory interests.

Second, Defendants should seek medical records to determine the nature and extent of Plaintiff’s prior medical conditions and injuries arising from the incident, not documents from Plaintiff’s past employer. The subpoena served on Rooter Master is simply not calculated to lead to the disclosure of relevant material.

Further, while there may be documents reflecting Plaintiff’s work on June 8, 2016 that might provide some evidence about whether Plaintiff was on-the-clock at the time of the incident, Defendants have provided no rationale about why this issue is at all relevant to this premises liability action.

Finally, Defendants argue that some of Plaintiff’s employment records may show the extent of his work hours after the accident. If Plaintiff contends that he was off work int the weeks or months after the accident tending to injuries he sustained on Defendant’s premises, his time sheets should be produced in response to the subpoena. If he does not so contend, there are no relevant documents to be produced by Rooter Master, and the entire subpoena should be quashed.

Plaintiff requests $2,100.00 in monetary sanctions be imposed against Defendants and their counsel of record for eight hours of reviewing the matter, meeting and conferring, preparing the motion, reviewing the opposition, preparing a reply, and participating at a hearing at a rate of $250.00 per hour, as well as fees and costs. The Court finds this to be an unreasonable amount. The Court finds $1,310.00 ($250.00/hr. x 5 hrs. plus one $60.00 filing fee) to be a reasonable amount of monetary sanctions to be imposed against Defendant.

The motion is GRANTED IN PART and DENIED IN PART.

To the extent that Plaintiff contends he was off work for injuries he sustained on Defendants’ premises – even if he does not claim lost wages — the Court orders the subpoena Defendants have issued to the custodian of records at Rooter Master Plumbing Services be limited by a protective order. Namely, the subpoena shall be valid only to the extent that it seeks time records showing the hours and days Plaintiff worked after June 8, 2016.

The Court orders Defendants and Defendants’ attorneys of record to pay $1,310.00, jointly and severally, to Plaintiff within 30 days of this order.

Plaintiff is ordered to give notice of this ruling.