Case Number: BC611993 Hearing Date: July 23, 2018 Dept: 51

Background

Plaintiff Lori Hoeft sues defendants Time-Warner Cable Inc., Time-Warner Cable Media Inc., and Mike Shippey for discrimination, wrongful termination, failure to pay wages, and related claims.

On March 1, 2016, plaintiff filed a complaint and on December 1, 2017, the operative first amended complaint for:

disability discrimination,

failure to accommodate,

failure to engage in the interactive process,

failure to prevent harassment/discrimination,

retaliation in violation of Labor Code section 1102.5,

retaliation in violation of Government Code section 12940(h),

intentional infliction of emotional distress,

wrongful termination in violation of public policy,

negligent hiring, supervision, and retention,

failure to pay all wages,

waiting time penalties, and

violation of the UCL.

On June 25, 2018, plaintiff filed this opposed motion to quash a subpoena served on her former lawyer, whom plaintiff is suing in an unrelated case, for plaintiff’s discovery responses made in that case. Both sides seek sanctions. The Court considered the moving, opposition and reply papers and rules as follows.

Request for Judicial Notice

Defendants’ request for judicial notice of the first amended complaint filed in plaintiff’s lawsuit against her former lawyer is GRANTED. Evid. Code § 452(d). The Court does not take notice of the truth of factual statements contained within but does notice any clear legal effect of the documents’ language. Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265, disapproved on another ground in Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919; Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.

Failure to Meet and Confer

Code of Civil Procedure section 1985.3, subdivision (g) provides that a motion brought under section 1987.1, as here, “shall be accompanied by a declaration showing a reasonable and good faith attempt at informal resolution of the dispute between the party requesting the personal records and the consumer or the consumer’s attorney.”

Here, defendant’s counsel represents that the only substantive discussion regarding the subpoena occurred after plaintiff had filed this motion. According to the e-mail exchanges submitted by both parties, on Friday, June 22, plaintiff’s counsel sent an e-mail at 6:11p.m. to ask about a time that evening or on the following Monday to discuss the subpoena. Wilson Decl. (Motion), Exh. B. Defendants’ counsel replied on Monday, and the parties apparently had a telephone discussion that day. Bowles Decl. ¶ 6, Exh. 5. Defendants’ counsel represents that he was not aware of the fact that by the time the parties discussed the subpoena, the motion had already been filed. Id. at ¶ 6. Moreover, defendants’ counsel represents that plaintiff’s counsel did not indicate any intention to file a motion to quash. Ibid.

Plaintiff’s counsel disputes that the motion was filed before the telephone conversation. Wilson Decl. (Reply) ¶ 5. Plaintiff’s counsel also proffers a letter, addressed to First Legal Records but copied to defendants’ counsel, dated June 11, indicating that plaintiff would be filing a motion to quash. Id. at 4 5, Exh. A.

Regardless of precisely when the motion was filed, this is not a reasonable and good faith attempt at an informal resolution of the dispute. The mere fact that plaintiff stated in a letter addressed to a third party that a motion to quash would be filed does not put the onus on defendants to reach out for a meet and confer. That remained plaintiff’s obligation, which she only attempted to do the Friday night before filing the motion on Monday.

The Court is not imposing sanctions because the motion is meritorious after full briefing and the Court is unconvinced that a meet-and-confer would have eliminated this need for this motion. Plaintiff’s counsel should be aware that the outcome of the motion is not dispositive, see Code of Civil Procedure section 2023.020, and a similar inadequate meet-and-confer in this case likely will warrant sanctions regardless of the motion outcome.

Motion to Quash Standard

When 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 the party, the witness, or any consumer described in Code of Civil Procedure section 1985.3, 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 such terms or conditions as the court shall declare, including protective orders. CCP §§ 1985.3(g), 1987.1, 2025.420(b); Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282, 1287. The court may also 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.

On the merits, when the subpoena power is invoked to secure discovery, the good cause and materiality requirements of section 1985 must be governed by discovery standards. Pacific Auto. Ins. Co. v. Superior Court (1969) 273 Cal.App.2d 61, 65. So, to secure discovery by use of a subpoena duces tecum, there must be a showing of more than a wish for the benefit of all the opposing information; the trial court must be afforded the factual data by the required affidavit to enable it to make an informed ruling on the issues of good cause and materiality. Id. at 67.

Regarding the “good cause” requirement, it may be found to justify discovery where specific facts show that the desired information is necessary for effective trial preparation or to prevent surprise at trial. See Associated Brewers Dist. Co. v. Superior Court (1967) 65 Cal.2d 583, 588. Absent such a legitimate need, discovery requests must be considered overbroad. See, e.g., Obregon v. Sup. Ct. (1998) 67 Cal.App.4th 424, 431. Moreover, without a fact-specific showing of relevance, the opposing party will not have not met its burden of showing “good cause” for its discovery requests, especially when questions of privacy exist. See Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.

Regarding the materiality requirement, when privacy is at issue, the information sought by the subpoenaing party must have direct relevance to the litigation, since privacy is accorded, in California, the status of an inalienable right, on a par with defending life and possessing property. California Constitution, Article I, Section I; Vinson v. Superior Court (1987) 43 Cal.3d 833, 841. Accordingly, it is the subpoenaing party’s burden in seeking constitutionally protected information to establish its direct relevance to the litigation, and mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice. Davis v. Superior Court of Kern County (1992) 7 Cal.App.4th 1008, 1017. Direct relevance, however, will not automatically open the door to the information sought; there still remains a careful balancing of the compelling public need for discovery against the fundamental right of privacy. Mendez v. Superior Court (1988) 206 Cal.App.3d 557, 567. As a result, the court must balance the rights of civil litigants to discover relevant facts against the privacy interest of the person subject to discovery. Vinson v. Superior Court (1987) 43 Cal.3d 833, 841; Britt v. Superior Court (1978) 20 Cal.3d 844, 859.

Analysis

The subpoena served on Farzad Rastegar, plaintiff’s former lawyer, seeks the following documents:

Any and all discovery responses, including responses to form interrogatories (general or employment), special interrogatories, requests for admission, or requests for production given by [plaintiff] in the matter of Lori Hoeft v. Rastegar Law Group, APC, Los Angeles Superior Court Case Number BC638394.

Wilson Decl. (Motion), Exh. A.

Plaintiff objects on the basis that the request is overbroad and that it violates her right to privacy.

Regarding overbreadth, defendant argues that the discovery responses relate to plaintiff’s claim of emotional distress; because plaintiff also claimed emotional distress in the Rastegar case, defendant asserts that “[e]ssentially, [plaintiff] is seeking double recovery for the same alleged emotional distress.” OPP 2:7-8.

At least at the discovery stage, it appears plausible that evidence as to plaintiff’s claimed emotional distress from after March 2015, when Rastegar allegedly made unwanted sexual advances and sexually battered her, Bowles Decl., Exh. 2 (Rastegar FAC) ¶ 9, could be relevant to evaluating an award to plaintiff for emotional distress in this case. Unless plaintiff in this case stipulates that she is not seeking distress damages from after that time, discovery about her emotional distress is permissible.

The request at issue, however, is by no means restricted to information relevant to plaintiff’s emotional distress claims. Rather, the request seeks “any and all” of plaintiff’s discovery responses in a largely unrelated case. (Although the underlying facts appear somewhat related in that plaintiff sought Rastegar to represent her in this wrongful termination matter, the alleged harms she suffered are at best only tangentially related.) Much of the responses would have nothing at all to do with plaintiff’s emotional distress.

Therefore, the subpoena inappropriate seeks irrelevant information and is overbroad. The Court is not inclined to rewrite it. Because this issue is dispositive, the Court does not reach the parties’ arguments regarding privacy concerns.

Conclusion

The motion is GRANTED. The Court declines to award sanctions against defendants because they acted justifiably in believing that the evidence as to emotional distress was discoverable, and because plaintiff failed to adequately meet-and-confer. Plaintiff to give notice.