Case Number: BC519164 Hearing Date: June 06, 2014 Dept: 34

SUBJECT: MOTION TO QUASH DEPOSITION SUBPOENAS

Moving Party: Plaintiff Jorge Merino (“plaintiff”)

Resp. Party: Defendant Synermed Inc. (“defendant”)

Plaintiff’s motion to quash the deposition subpoenas propounded by defendant on Ronald Pinkerton, M.D., Southern California Edison, and L.A. Fitness is GRANTED.

BACKGROUND:

Plaintiff commenced this action on 8/23/13 against defendant for: (1) failure to accommodate; (2) failure to engage in the interactive process; (3) discrimination; (4) retaliation (FEHA); (5) failure to prevent discrimination and retaliation; (6) breach of contract; (7) fraudulent inducement; (8) waiting time penalties; (9) wrongful termination in violation of public policy; and (10) retaliation (Lab. Code, § 1102.5(b).

Plaintiff was hired by defendant in July 2012. (Compl., ¶ 10.) Plaintiff alleges he did not receive his promised pay increases or all bonuses / commissions. (Id., ¶¶ 11-15.) Plaintiff alleges that he was the only male in his position in the department and that female employees were paid their commissions. (Id., ¶¶ 18-21.) Plaintiff alleges he was retaliated against for complaining about not being paid. (Id., ¶¶ 22, 24-25.) Plaintiff took a five-day medical leave due to stress in June 2013. (Id., ¶ 27.) When he returned to work, he learned that his company-issued mobile phone and e-mail address had been deactivated. (Id., ¶ 29.) The next day, plaintiff was informed that he was being terminated. (Id., ¶ 30.) The stated reason was that he failed to respond to voice mails left on his mobile phone during the week he was on leave and was unable to access the phone because it had been deactivated. (Ibid.)

PRELIMINARY COMMENTS:

In both its opposition to this Motion to Quash and its opposition to Plaintiff’s Motion to File an Amended Complaint, Defendant Synermed fails to separate its voluminous exhibits with hard tabs, in violation of California Rules of Court rule 3.1110(f). This makes it more difficult for the Court to analyze defendant’s opposition.

Further, on January 31, 2014, the parties met the court informally in chambers to discuss certain discovery issues. The court is not sure why this discovery motion could not have been resolved by way of such an informal discovery conference.

ANALYSIS:

As an initial matter, the Court notes that defendant fails to separate its voluminous exhibits with hard tabs, in violation of California Rules of Court rule 3.1110(f).

Plaintiff moves to quash subpoenas issued by defendant to plaintiff’s primary care physician, Ronald Pinkerton, M.D., and his previous employers Southern California Edison and L.A. Fitness.

California Code of Civil Procedure section 1987.1, subd. (a) provides:

If 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.

The subpoenas served on Southern California Edison and L.A. Fitness seek plaintiff’s “complete personnel and payroll records.” (See Pl. Exhs. A, B.) The subpoenas served on Pinkerton seek “any and all medical records” and “any and all billing statements.” (See Pl. Exhs. C, D.)

Simply put, they are overbroad.

“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.) Medical records are also protected by the right to privacy. (See Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669, 679.)

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.)

Defendant argues that plaintiff’s medical records, medical billing records, and employment personnel records are relevant because plaintiff placed these records at issue by alleging a disability and injuries, alleging damages for emotional distress and costs of treatment, and maintaining that he was a good worker with a strong work ethic. This is not sufficient to outweigh plaintiff’s right to privacy because the subpoenas at issue are not narrowly tailored. The subpoenas served to Pinkerton are not limited to the relevant time period or subject matter for this action, and instead seek all medical and billing records. Defendant fails to show that all of plaintiff’s medical and billing records are directly relevant. Defendant also fails to show that plaintiff’s personnel records from his previous employers are directly relevant. Whether plaintiff performed well at those jobs is irrelevant to the issue of whether plaintiff adequately performed his duties while working for defendant.

Accordingly, plaintiff’s motion to quash the deposition subpoenas propounded by defendant on Ronald Pinkerton, M.D., Southern California Edison, and L.A. Fitness is GRANTED.

SUBJECT: MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT

Moving Party: Plaintiff Jorge Merino (“plaintiff”)

Resp. Party: Defendant Synermed Inc. (“defendant”)

Plaintiff’s motion for leave to file a first amended complaint is GRANTED.

ANALYSIS:

Procedural Analysis

Under California Rules of Court rule 3.1324(a):

(a) A motion to amend a pleading before trial must: [¶] (1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; [¶] (2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and [¶] (3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

Subdivision (b) of rule 3.1324 requires the motion be accompanied by a separate declaration, specifying: (1) the amendment’s effect, (2) why the amendment is necessary and proper, (3) when the facts giving rise to the amended allegations were discovered, and (4) the reasons why the request for amendment was not made earlier.

Plaintiff provides a proposed first amended complaint (“FAC”). (See Pl. Exh. C.) In the notice of motion, plaintiff discusses the proposed amendments in the FAC. The primary change is the addition of Pacific Alliance Medical Center, Inc. as a defendant.

Plaintiff’s declaration states that plaintiff intends to add Pacific Alliance Medical Center as a defendant in this action. (Ruiz Decl., ¶ 4.) Ruiz states that PAMC’s direct involvement in defendant’s human resources decisions, such as the termination of plaintiff, makes PAMC a proper defendant in this action. (Ibid.) The facts giving rise to the amendment appear to have been discovered on 4/4/14 when plaintiff took the deposition of defendant’s PMQ, Linda Lopez. (Ibid.) At the time the complaint was filed, plaintiff was unaware of the precise nature of the relationship between defendant and PAMC. (Id., ¶ 3.) Plaintiff attempted to obtain a stipulation from defendant to allow the filing of the FAC, but defendant refused. (Id., ¶¶ 5-6.)

Substantive Analysis

California Code of Civil Procedure section 473, subd. (a)(1) states: “The court may . . . , in its discretion, . . . allow, upon any terms as may be just, an amendment to any pleading or proceeding.” Although granting the motion is entirely within the Court’s discretion, denial is rarely justified:

If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error, but an abuse of discretion.

(Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.)

Defendant challenges the sufficiency of the allegations in the proposed FAC. The Court declines to decide on the sufficiency of the allegations at this time. The Court is “bound to apply a policy of great liberality in permitting amendments to the complaint ‘at any stage of the proceedings, up to and including trial,’ absent prejudice to the adverse party.” (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2013) ¶ 6:652 [quoting Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761][emphasis in original].) A court ordinarily will not consider the validity of the proposed amended pleading in deciding whether to grant leave to amend, and grounds for demurrer or motion to strike are premature. (Id., ¶ 6:644.) To the extent that the allegations in the proposed FAC are insufficient or without merit, defendant may challenge them with a demurrer or motion to strike. (See Atkinson v. Elk Corp. (2006) 109 Cal.App.4th 739, 760 [”the better course of action would have been to allow . . . [plaintiffs] to amend the complaint and then let the parties test its legal sufficiency in other appropriate proceedings.”].)

Defendant argues that it will be prejudiced if leave to amend is granted because this would cause undue delay, increase the scope of discovery, increase litigation expenses, and waste time and resources. Defendant fails to show that there will be cognizable prejudice. The fact that the scope of the litigation will increase does not, by itself, establish prejudice. Defendant provides no evidence which shows that the costs or discovery burdens will greatly increase or that defendants will otherwise be prejudiced. (See Grochow Decl., ¶ 25 [merely repeating conclusory assertions raised in the opposition].)

The court also finds it interesting that defendant Synermed argues that it would be prejudiced if PAMC were brought in as a co-defendant. Normally, one defendant is perfectly happy to point the finger at another defendant. Unless defendant Synermed and defendant PAMC are closely related entities, it is unclear to the court how a first amended complaint naming PAMC would prejudice Synermed. Further, unless counsel for Synermed would also be representing PAMC, it is not clear to the court how counsel can accurately predict that “the court will be faced with a lengthy Demurrer and Summary Judgment process.” (Grochow Decl., ¶ 25.)

Plaintiff’s motion for leave to file a first amended complaint is GRANTED