2013-00139717-CU-OE

Jaspal Deol vs. Sacramento Municipal Utilities Department

Nature of Proceeding: Motion to Quash Deposition Subpoena

Filed By: Burkett, David P.E.

SMUD’s Motion to Quash Deposition Subpoena issued to Alice Perez pursuant to
CCP 1987.1, 2025.410 is ruled on as follows. The Court agrees to review the Investigation Report and the Voluntary Employment
Separation Agreement concerning Perez and make a determination as to whether
those documents are directly relevant to plaintiff’s claims sufficient to overcome Perez’
privacy rights and the confidentiality agreement. After reviewing the documents, the
court will decide whether to grant or deny the motion to quash.

Defendant shall make an appointment on the court’s ex parte calendar and deliver the
Investigation Report and the Voluntary Employment Separation Agreement concerning
Perez for the court’s in camera inspection. The Court also requires that the
Investigation Report and Voluntary Employment Separation Agreement pertaining to
plaintiff be produced at that time.

Plaintiff alleges claims under the FEHA arising out of his 29 year employment with
SMUD. SMUD contends plaintiff’s claims are barred by a release. SMUD contends
that it sought Plaintiff’s voluntary separation after it received complaints from
subordinates about his style of leadership and concluded he could no longer be an
effective manager at SMUD. Plaintiff signed the release as part of the voluntary
separation agreement . Plaintiff contends that he was coerced into signing the release
because he did not want a false Investigation Report to become public.

Plaintiff contends that he is entitled to explore the Investigation Report and the
Voluntary Employment Separation Agreement entered into by another employee, Alice
Perez, in 2010. Perez is the only other employee who had signed such an agreement
after an Investigative Report was prepared by Peg Cronk. Crokn sent an email stating
that she used Perez report as a “template” for plaintiff’s report. Plaintiff attempted to
contact Perez directly for information but would not discuss it with him due to the
confidentiality agreement.

SMUD contends Perez has no personal knowledge about this case and that plaintiff is
seeking information from Perez about her own personnel matters and her October
2010 voluntary separation from SMUD. SMUD contends that Perez’ personnel
information is protected by the right of privacy provided by article 1, section 1 of the
California Constitution. (See Board of Trustees v Superior Court (1981) 119
Cal.App.3d 516, 526, 528-529. Perez’ experience with her own voluntary separation is
not directly relevant to Plaintiff’s claims that he was induced to sign the release due to
an alleged contrived investigation performed by Peg Cronk. SMUD also contends that
Perez and SMUD entered a mutual non-disclousure provision in connection with her
voluntary separation. SMUD seeks an order quashing the deposition notice or
alternatively modify the subpoena such that Perez is not required to testify regarding
her employment with SMUD or reasons for leaving that employment. SMUD also
agrees to offer the Investigation Report and the voluntary separation agreement for
Perez for in camera review.

Plaintiff contends that Perez’ employment separation has similarities to his because
Cronk stated in an email that when she pulled up Alice’s (Perez) report to use as the
template for Plaintiff’s report, she could have literally used it with no editing, (but did
not do so.). Plaintiff contends SMUD has no standing to raise Perez’ privacy rights,
that SMUD does not represent Perez, and that Perez, who was personally served with
the subpoena, has not filed an independent opposition to the motion raising privacy
rights on her own behalf.
The Court rejects plaintiff’s argument that an employer has no standing to raise an
employee’s [or former employee’s] privacy rights. See, e.g. Harding Lawson
Associates v. Superior Court (1992) 10 Cal.App.4th 7, 10. [“However, the balance will
favor privacy for confidential information in third party personnel files unless the litigant
can show a compelling need for the particular documents and that the information
cannot be reasonably obtained through depositions or from nonconfidential sources.” (
Id.)] “[W]hen a litigant’s request for discovery touches another person’s privacy
interest, a litigant is not as free to obtain information as [the litigant] might otherwise
be.” Ombudsman Services of Northern California v. Superior Court, (2007) 154 Cal.
App. 4th 1233, 1250-1251. SMUD also has “standing” to raise the confidentiality
provision to which it is a party. The lack of opposition is not a waiver of the privacy
rights given that SMUD told Perez it was filing the motion raising her privacy rights.
The Court is not persuaded based on the fact that Perez was the only other person
who voluntarily separated after an Investigation Report was completed by Peg Cronk,
that her separation and Report are directly relevant to plaintiff’s claim that the
agreement he signed with SMUD was coerced. However, the court will first examine
the documents in camera and make a further determination as to whether the
deposition will be permitted. In so doing the Court again notes that relevancy in right of
privacy cases seems to be governed by a more stringent standard of “direct
relevance,” in order to prevent a searching for only tangentially pertinent sensitive
information. (See Britt v. Superior Court (1978) 20 Cal.3d 844, 860-861 & fn. 4; Weil &
Brown, Cal. Practice Guide, Civil Procedure Before Trial (1987) § 8:320, p. 8C-50.)

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.

Item 11 2013-00139717-CU-OE

Jaspal Deol vs. Sacramento Municipal Utilities Department

Nature of Proceeding: Motion to File Amended Complaint

Filed By: Telfer, Jill P.

Plaintiff’s Motion to File Amended Complaint is granted.

Plaintiff alleges claims under the FEHA arising out of his 29 year employment with
SMUD. SMUD contends plaintiff’s claims are barred by a release. SMUD contends
that it sought Plaintiff’s voluntary separation after it received complaints from
subordinates about his style of leadership and concluded he could no longer be an
effective manager at SMUD. Plaintiff signed the release as part of the voluntary
separation. Plaintiff contends that he was coerced into signing the release because he
did not want a negative Investigation Report to become public.

Plaintiff seeks leave to amend his complaint to allege more facts regarding the 8th
cause of action for Rescission. Plaintiff contends he recently learned that defendant is
narrowly interpreting his rescission claim to be based only on misrepresentations
made by SMUD general manager Jon DiStasio and Assistant General Manager Paul
Lau that plaintiff was required to sign both parts of the two-document severance
agreement for it to be valid. Plaintiff seeks to allege rescission based also on the
alleged fraud arising out of the investigation conducted by Peg Cronk and a
subsequent Investigation Report.
The 8th cause of action for Recission, as currently pleaded, alleges facts only
concerning the representation that both parts of the severance agreement must be
signed. The newly proposed second basis for the rescission claim is already alleged
in the Complaint, but only as the basis of a defamation causes of action, now
dismissed, and not the rescission cause of action. Since the facts supporting the
amendment are already alleged in the Complaint, allowing amendment of the
rescission claim is permissible and is not prejudicial within the meaning of CCP 473.

Defendant’s only argument regarding prejudice is that allowing this amendment will
moot a pending motion for summary adjudication that addresses only the validity of the
rescission cause of action as it is currently pleaded. This is not the type of prejudice to
warrant denying the motion. The case of Cota v Los Angeles (1980) 105 Cal.App.3d
282, relied on by defendant, was a case where the request to amend came at the end
of a lengthy trial. Here, there is no pending trial date.

“Trial courts are vested with the discretion to allow amendments in the furtherance of
justice… That Trial courts are to liberally permit such amendments, at any stage of the
proceeding, has been established policy in this state…resting on the fundamental
policy that cases should be decided on the merits.” Hirsa v Superior Court (1981) 118
Cal.App.3d 486, 488-489.

Judicial policy favors resolution of all disputed matters between the parties in the same
lawsuit. Thus, the court’s discretion will usually be exercised liberally to permit
amendment of the pleadings. See Nestle v. Santa Monica (1972) 6 Cal.3d 920,939;
Mabie V. Hyatt (1998) 61 Cal. App.4th 581, 596 (citing text). Howard v. County of San
Diego (2010)184 Cal.App.4th 1422, 1428.” California Civil Procedure Before Trial
(2012, Rutter) § 6:638 – 6:339.

Plaintiff shall file and serve the Amended Complaint on or before November 4, 2013.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.