Case Number: BC518446    Hearing Date: September 08, 2014    Dept: 34

Moving Party: Plaintiff Yunuen Campos (“plaintiff”)

Resp. Party: Defendants Kindred Healthcare Operating Inc. (“Kindred”), KND Development 53, LLC dba Kindred Hospital South Bay (“KND”) (“defendants”)

Plaintiff’s motion to quash the deposition subpoenas propounded by defendants on Los Alamitos Hospital and Mediscan is DENIED.

The Court declines to impose sanctions.

PRELIMINARY COMMENTS:

This is the eighth time the parties have appeared before this Court on discovery motions within the past 9 months. (This does not count the demurrer and motion for leave to amend – both non-discovery law and motion matters.) In those eight previous appearances, the parties have called on the court to rule on over a dozen discovery motions, and have had at least four informal discovery conferences with the Court in chambers. It is hard for the Court to believe that this expenditure of the attorney’s time – not to mention the waste of the Court’s finite resources – is serving the interests of any of the parties.

ANALYSIS:

Plaintiff moves to quash subpoenas served by Kindred and KND on plaintiff’s former employers Los Alamitos Hospital and Mediscan.

The Court rejects plaintiff’s argument that defendants acted improperly by serving the subpoenas after plaintiff served a notice of motion to quash. In her motion, plaintiff cites to Code of Civil Procedure section 2023.010 to support this argument. (See Motion, p. 6:18-24.) This citation is improper; section 2023.010 pertains to discovery sanctions and says nothing about service of deposition subpoenas.

Even if Plaintiff intended to cite Code of Civil Procedure section 1985.6, this statute does not help plaintiff. The plain language of this statute provides that an employee may notify the witness that a motion “has been brought” and, upon receipt of such notice, the witness will not be required to respond unless upon a court order or agreement. This language suggests that the witness is only prevented from responding after the motion has already been brought. There is no language in section 1985.6 which suggests that the propounding party may not serve a deposition notice after notice of an intent to move to quash has been filed. Plaintiff provides no other authority to support her assertion that “notice of a motion should stop service of a subpoena.” The fact that defendant may have made representations about the effect of service of a notice of motion to quash does not change the fact that there is no authority which prohibits service of a subpoena after service of a notice of motion to quash. (See Priolo Decl., ¶ 3; Dean Decl., ¶ 5.)

The Court also rejects plaintiff’s argument that the prior ruling granting plaintiff’s motion to quash defendant Kennedy’s subpoena on Los Alamitos precluded defendants from serving the instant subpoenas. Not only was the subpoena at issue in that ruling propounded by another party (defendant Kennedy), but it was much broader in scope. (See Pl. Exh. A [filed 2/28/14 with plaintiff’s motion to strike]; Pl. Exhs. D, F [filed with the instant motion].) In ruling on the motion, the Court found that Kennedy had not met his burden of establishing that the documents sought – which included “any and all” employment records pertaining to plaintiff – were directly relevant, and that the subpoenas were not narrowly tailored. (See Order, 5/1/14.) Nothing in the Court’s order prohibited any party from serving a renewed, more narrowly tailored subpoena. (See ibid.)

The subject subpoenas were served on Los Alamitos Hospital (plaintiff’s current employer) and Mediscan (plaintiff’s former employer). (See Pl. Exhs. D, E.) The subpoenas seek “[t]he payroll records pertaining to the employment of [plaintiff] from 1/1/12 to the time of termination.” (See ibid.) Plaintiff argues that the subpoenas invade her privacy rights.

“California accords privacy the constitutional status of an ‘inalienable right,’ on a par with defending life and possessing property.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 841 [citing Cal. Const., art. I, § 1; White v. Davis (1975) 13 Cal.3d 757].) In determining this issue, “courts must balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery.” (Id. at p. 843.) Employee personnel records are protected by the right to privacy. (See El Dorado Savings & Loan Assn. v. Superior Court (1987) 190 Cal.App.3d 342, 345-346.)

The right to privacy is not absolute and is limited by the right to discovery. (Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1853.) “Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.) However, “when the constitutional right of privacy is involved, the party seeking discovery of private matter must do more than satisfy the section 2017 standard. The party seeking discovery must demonstrate a compelling need for discovery, and that compelling need must be so strong as to outweigh the privacy right when these two competing interests are carefully balanced.” (Lantz, 28 Cal.App.4th at pp. 1853-1854.)

“[D]etermination of the nature of the compelling state interest does not complete the constitutional equation.” (Palay v. Superior Court (1993) 18 Cal.App.4th 919, 934.) “An impairment of the privacy interest ‘passes constitutional muster only if it is necessary to achieve the compelling interest.’” (Ibid. [quoting Wood v. Superior Court (1985) 166 Cal.App.3d 1138, 1148].)

“That means that the conflict between the competing values must be unavoidable, i.e., that it does not arise from the choice of means by which to secure the compelling interest. It can readily be seen that if the conflict is avoidable but is not avoided the real conflict is not between the compelling interest and the constitutional interest but between the means chosen to achieve the compelling interest and the constitutional interest. Thus, a logical corollary of the compelling interest doctrine is the alternatives test. It requires a reordering of the values to be placed on the constitutional scales. If an alternative means of securing the compelling interest can be devised by which to avoid or minimize the conflict between the values protected by the constitution and the values found to be of compelling interest, that must be done. [Citation.] This results in a prohibition, among other things, of overbroad means of enforcement. It requires that the state utilize the ‘least intrusive’ means to satisfy its interest. [Citation.]”

(Palay, 18 Cal.App.4th at p. 934 [quoting Wood, 166 Cal.App.3d at p. 1148].) “The scope of methods used must be tailored to avoid disclosure of protected records.” (Palay, 18 Cal.App.4th at p. 934.)

“The burden is on the party seeking the constitutionally protected information to establish direct relevance.” (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017.) “Mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice.” (Ibid.) “[W]hile the filing of a lawsuit may implicitly bring about a partial waiver of one’s constitutional right of . . . privacy, the scope of such ‘waiver’ must be narrowly rather than expansively construed.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 859.)

Defendants argue that the records sought are directly relevant to the issue of plaintiff’s claimed damages. In her pleadings and discovery responses, plaintiff has stated that she lost wages because she could not work after the alleged incident. (See Def. Exhs. 1-3.) Unlike the previous subpoena propounded on Los Alamitos, the instant subpoenas are narrowly tailored to this issue. The subpoenas do not seek all of plaintiff’s employment records; instead, they only seek plaintiff’s payroll records from 1/1/12 until plaintiff’s termination.

Plaintiff argues that the subpoenas are not necessary because plaintiff has produced her paycheck stubs from Los Alamitos for the period from 6/16/13 to 1/11/14, and from Mediscan for the period from 4/7/13 to 5/25/13. (See Priolo Decl., ¶ 5.) Priolo declares that these records represent all of the relevant records for the time frames plaintiff worked for these employers following the incident. (Ibid.) Such records do not cover the same time period as the subpoenas. At her deposition, plaintiff testified that she worked for Mediscan prior to April 2013. (See Def. Exh. 13, pp. 38-39.) The Court rejects plaintiff’s argument that defendants cannot seek records of plaintiff’s wages prior to the alleged incident. Such records could show whether or the extent to which plaintiff’s income was impacted by the alleged incident.

Plaintiff’s main concern appears to be that when Campos’ employers receive the subpoenas, they may retaliate against her because she has filed this complaint. According to Plaintiff, “Campos will potentially suffer irreparable harm as a result of the service of the subject subpoenas. The stigma associated with the issuance of a subpoena, as evidence of Campos’s participation in a lawsuit against an employer, is profound when issued to an employer in Campos’s chosen industry and the same industry in which Campos continues to work. . . . The reality is that the issuance of the subpoena ensures Campos’s current employer’s knowledge of the lawsuit, which may well have a negative impact on her current and future employment.” (Opp., p. 10:14-21; see also, Opp., p. 4:21-23.)

The Court does not wish to minimize plaintiff’s concern and recognizes that such retaliation by her employer is a possibility. Whether such adverse employment action by her current employer would be actionable as, e.g., a wrongful termination in violation of public policy, is not an issue that this Court must decide at the present time.

However, so long as Campos is claiming lost earnings, Defendants are entitled to this information. If Campos were to drop her claim for lost wages, the Court might well find the information sought by the subpoenas to be irrelevant. Alternatively, if Campos were to provide this information through other means – e.g., tax returns, pay stubs, etc. – the court might well find the subpoenas to be unnecessary.

Given the current state of the pleadings and discovery, the court finds that the subpoenas, as narrowly tailored, do not unnecessarily infringe on plaintiff’s privacy rights.

Plaintiff’s motion to quash the deposition subpoenas propounded by defendants on Los Alamitos Hospital and Mediscan are DENIED. Because the motions are denied, plaintiff is not entitled to sanctions.

In the opposition, defendants seek sanctions against plaintiff and her counsel in the total amount of $4,830.00. “Except as specified in subdivision (c), 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.” (Code Civ. Proc., § 1987.2(a).) Defendants fail to establish that the instant motion was made in bad faith or without substantial justification.

To the extent that defendants seek sanctions under Code of Civil Procedure 2023.030(a) for plaintiff’s conduct regarding discovery other than the subpoenas at issue in the instant motion, such request is improper. If defendants wish to impose sanctions for such conduct, they must bring a timely and procedurally proper noticed motion requesting such sanctions. Defendant’s request for sanctions is denied.