Reply_to_motion__country_villaReplyCal. Super. - 4th Dist.October 26, 2016Th e Sc hl eh r L a w Fi rm , P. C. 15 0 Ea st Ol iv e A v e n u e , Su it e 21 4 B u r b a n k , C A 9 1 5 0 2 (3 10 ) 49 2- 57 57 ~N O N n n BR W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SARAH B. SCHLEHR (SBN 229523) STACEY BROWN (SBN 245661) THE SCHLEHR LAW FIRM, P.C. 150 East Olive Avenue, Suite 214 Burbank, CA 91502 sarah @pregnancylawyer.com (310) 492-5757 phone (310) 601-7959 fax Attorneys for Plaintiff Jamica Garcia ELECTRONICALLY FILED Superior Court of Califarnia, County of Orange 10/30/2018 at 04:23:00 PM Clerk of the Superior Court By Monique Ramirez, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE JAMICA GARCIA, an individual, Plaintiff, v. LIFE CARE CENTERS OF AMERICA, INC.., a corporation; SHARON ROMAN, an individual; CRYSTAL ORTIZ, an individual, KHRIZT LOPEZ, an individual; and DOES 1 through 100, inclusive, Defendants. Case No.: 30-2016-00883358-CU-WT-CIC Assigned for All Purposes to: Hon. John C. Gastelum Dept. C11 PLAINTIFF'S REPLY IN SUPPORT OF MOTION TO QUASH THE DEPOSITION SUBPOENA FOR THE PRODUCTION OF BUSINESS RECORDS ISSUED TO COUNTRY VILLA PLAZA CONVALESCENT CENTER; AND REQUEST FOR SANCTIONS IN THE AMOUNT OF $1622.50 RESERVATION ID: 72873646 Date: November 6, 2018 Time: 2:00 PM Dept.: C11 Complaint Filed: October 26, 2016 Trial Date: February 19, 2019 PLAINTIFF'S REPLY ISO MOTION TO QUASH THE DEPOSITION SUBPOENA FOR THE PRODUCTION OF BUSINESS RECORDS ISSUED TO COUNTRY VILLA CONVALESCENT CENTER Th e Sc hl eh r L a w Fi rm , P. C. 15 0 Ea st Ol iv e A v e n u e , Su it e 21 4 B u r b a n k , C A 9 1 5 0 2 (3 10 ) 4 9 2 - 5 7 5 7 ~N O N n n BR W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY I. INTRODUCTION The Code of Civil Procedure sets forth the rules that govern discovery in a civil case. These rules are in place, in part, to ensure that privacy interests and privileges are protected. The rules are also in place to make sure that no party abuses the discovery process, and to ensure that discovery is completed in a timely manner before trial. Defendants have utterly refused to follow these rules and maintain that they should not be required to follow them. In this instance, Defendants issued a subpoena seeking the production of Plaintiff’s entire personnel file from Country Villa after the close of the discovery. Not only did Defendants violate the Code of Civil Procedure in that they sought the production of documents after the discovery cut-off, the subpoena is overbroad, seeks documents in violation of Plaintiff’s right to privacy, and when Plaintiff’s counsel sought to meet and confer on these issues, Defendants’ counsel refused to engage in the meet and confer process, forcing Plaintiff to file a motion to quash the subpoena. Defendants have repeatedly acted in bad faith by ignoring the Code of Civil Procedure and by refusing to engage in the meet and confer process. Plaintiff respectfully requests that the Court quash the untimely subpoena issued to County Villa in its entirety and order that Defendants and/or their counsel of record pay monetary sanctions to compensate Plaintiff for the time spent preparing and filing the motion to quash the Country Villa subpoena. II. ARGUMENT A. DEFENDANTS FAILED TO COMPLY WITH THE CODE OF CIVIL PROCEDURE On August 9, 2018 Defendants served a subpoena for the production of Plaintiffs entire personnel file from her employer County Villa. The production date for the subpoenaed documents was August 30, 2018. At the time that Defendants issued the subpoena, they were aware that that the discovery cut-off was August 13, 2018. (See Oppo. p. 2:13-15.) Defendants attempt to defend their untimely subpoena by claiming that they did so “with the knowledge that the trial would be continued to early 2019” and that they “anticipated” that they discovery cut-off dates would be continued along with the trial date. (Oppo. p. 2:19-23.) 1 PLAINTIFF'S REPLY ISO MOTION TO QUASH THE DEPOSITION SUBPOENA FOR THE PRODUCTION OF BUSINESS RECORDS ISSUED TO COUNTRY VILLA CONVALESCENT CENTER Th e Sc hl eh r L a w Fi rm , P. C. 15 0 Ea st Ol iv e A v e n u e , Su it e 21 4 B u r b a n k , C A 9 1 5 0 2 (3 10 ) 4 9 2 - 5 7 5 7 ~N O N n n BR W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This claim lacks any credibility. The Court granted Plaintiff’s ex parte application to continue the trial date on August 7, 2018, two days before Defendants issued their subpoena to County Villa. Plaintiff’s counsel served a courtesy copy of the notice of ruling via email on August 7, 2018, and the notice of ruling specifically stated that the Court ordered that “the discovery cut- off be continued only as to discovery timely served prior to the initial discovery cut-off based on the September 10, 2018 trial date.” Brown Reply Decl. 2, Ex. C, see also, Ex. D. Defendants knew on August 7, 2018 that the Court had granted Plaintiff’s ex parte and that the discovery cut-off was continued only as to that discovery which had been timely served before the September 10, 2018 discovery cut-off. Nonetheless, Defendants proceeded to issue and serve a subpoena for the production of Plaintiff’s private employment records from Country Villa for a date after the discovery cut-off, with full knowledge that the discovery cut-off had not be continued as to new discovery. Defendants then refused to meet and confer regarding the subpoena to Country Villa and forced Plaintiff to file her motion to quash. Defendants’ subpoena to Country Villa must be quashed on the grounds that it is untimely. B. PLAINTIFF’S EMPLOYMENT RECORDS AND WITHIN HER CONSTITUTIONALLY PROTECTED ZONE OF PRIVACY AND SHE HAS NOT WAIVED HER RIGHT TO PRIVACY BY INITIATING THE UNDERLYING LAWSUIT Even if Defendants’ subpoena to Country Villa was not untimely, it must be quashed on the grounds that it is overbroad and violates Plaintiff’s right to privacy. Defendants seek Plaintiff’s entire personnel file from her employer Country Villa — including employee progress reports, evaluations, customer complaint reports, and disciplinary actions/reports, payroll records, and privileged tax information. Defendants offer no justification for seeking the entirety of Plaintiff’s employment records from Country Villa, other than to generally stated that Plaintiff] has placed her employment history at issue by seeking special damages and loss of earnings. This general statement does not justify the disclosure of Plaintiff’s entire personnel file, which is protected by Plaintiff’s right to privacy. 2 PLAINTIFF'S REPLY ISO MOTION TO QUASH THE DEPOSITION SUBPOENA FOR THE PRODUCTION OF BUSINESS RECORDS ISSUED TO COUNTRY VILLA CONVALESCENT CENTER Th e Sc hl eh r L a w Fi rm , P. C. 15 0 Ea st Ol iv e A v e n u e , Su it e 21 4 B u r b a n k , C A 9 1 5 0 2 (3 10 ) 4 9 2 - 5 7 5 7 ~N O N n n BR W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff’s employment records are within a constitutionally protected zone of privacy. See Board of Trustees v. Superior Court, 119 Cal. App.3d 516, 528-530 (1981). It is well-settled that a plaintiff does not waive all privacy rights simply by initiating a lawsuit. See Britt v. Superior Court, 20 Cal.3d 844 (1978). While 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.” Id. at 859 (emphasis added). The courts have reasoned that a contrary holding would effectively deter plaintiffs from initiating lawsuits due to fear that their private information would be exposed. Id. The documents contained in personnel records often include highly confidential information - including medical and financial records and information and data (like applications for employer-provided group health insurance), or confidential letters regarding the employee written by outsiders, disclosure of which would impair the confidentiality those third parties expected would be accorded to their communications--concerning third parties who are have no notice that their confidential information is being sought. /d.; see also, Rylaarsdam & Edmon, Cal. Prac. Guide Civ. Pro. Before Trial (2011 The Rutter Group), Ch. 8C-5, § 8:309. Additionally, the documents sought include privileged tax records. Brown v. Superior Court (1977) 71 Cal.App.3d 141, 143 [the “tax return privilege” extends to W-2 forms]. Even if Defendants could establish direct relevance in Plaintiff’s payroll records, Defendants’ subpoena was drafted too broadly to also implicate documents it simply does not get irrespective of direct relevance. Because the subpoena at issue is untimely and seeks Constitutionally-protected and private information, it should be quashed in its entirety. C. PLAINTIFF IS ENTITLED TO MONETARY SANCTIONS Plaintiff seeks monetary sanctions in the amount of $1,622.50 jointly and severally against Defendant Life Care Centers of America and Defendant’s counsel of record, Wood, Smith, Henning, & Berman, L.L.P. Recognizing that discovery abuses can occur, the legislature explicitly authorized the courts to curb such conduct and impose sanctions to deter future abuse. Pursuant to CCP § 2023.030, this court may impose a monetary sanction ordering that one 3 PLAINTIFF'S REPLY ISO MOTION TO QUASH THE DEPOSITION SUBPOENA FOR THE PRODUCTION OF BUSINESS RECORDS ISSUED TO COUNTRY VILLA CONVALESCENT CENTER Th e Sc hl eh r L a w Fi rm , P. C. 15 0 Ea st Ol iv e A v e n u e , Su it e 21 4 B u r b a n k , C A 9 1 5 0 2 (3 10 ) 4 9 2 - 5 7 5 7 ~N O N n n BR W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” The Court is also authorized to impose sanctions against any party who persists “over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery” and against any party who employs “a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” CCP § 2023.010. See also CCP § 1987.2 ((“[ T]he 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.”) Defendants and their counsel have acted in bad faith. They refused to follow the Code of Civil Procedure by intentionally serving a subpoena for the production of documents on a date that they knew was after the discovery cut-off. Defendants disingenuously claim that they “anticipated” that the trial date and discovery cut-off would be continued, despite having knowledge that two days prior to their issuance of the subpoena, the Court had ordered that “the discovery cut-off be continued only as to discovery timely served prior to the initial discovery cut-off based on the September 10, 2018 trial date.” See Brown Reply Decl. 2, Ex. C, see also, Ex. D. Defendants then refused to respond to Plaintiff's meet and confer efforts regarding the subpoena to Country Villa (which they knew was untimely) and forced Plaintiff’s counsel to file the instant motion to quash. Given that Defendants’ counsel knew that the subpoena was untimely at the time it was issued and that the Court had not continued the discovery cut-off as to new discovery and given that Defendants’ counsel refused to withdraw or even meet and confer about the subpoena to Country Villa, Defendants’ counsel opposed this motion in bad faith and without substantial justification. As such, monetary sanctions are warranted. III. CONCLUSION 4 PLAINTIFF'S REPLY ISO MOTION TO QUASH THE DEPOSITION SUBPOENA FOR THE PRODUCTION OF BUSINESS RECORDS ISSUED TO COUNTRY VILLA CONVALESCENT CENTER Th e Sc hl eh r L a w Fi rm , P. C. 15 0 Ea st Ol iv e A v e n u e , Su it e 21 4 B u r b a n k , C A 9 1 5 0 2 (3 10 ) 4 9 2 - 5 7 5 7 ~N O N n n BR W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 For the foregoing reasons, Plaintiff Jamica Garcia respectfully requests that the Court quash the subpoena issued by Defendants to Country Villa in its entirety. Plaintiff also requests monetary sanctions in the amount of $1,622.50. DATED: October 30, 2018 THE SCHLEHR LAW FIRM, P.C. SARAH B. SCHLEHR STACEY R. BROWN ATTORNEYS FOR PLAINTIFF JAMICA GARCIA 5 PLAINTIFF'S REPLY ISO MOTION TO QUASH THE DEPOSITION SUBPOENA FOR THE PRODUCTION OF BUSINESS RECORDS ISSUED TO COUNTRY VILLA CONVALESCENT CENTER
