LEIGH HASSELL VS NORTHRIDGE PLAZA PHARMACY, INC. (D/B/A SOUTH MIAMI PHARMACY SOLUTIONS #4), A CALIFORNIA CORPORATION, ET AL.

Tentative Rulings

Case Number: *******0289    Hearing Date: April 15, 2021    Dept: F47

Dept. F-47

Date: 4/15/21 TRIAL DATE: 1/24/22

Case #*******0289

MOTION TO QUASH DEPO SUBPOENA

Motion filed on 1/19/21.

MOVING PARTY: Plaintiff Leigh Hassel

RESPONDING PARTY: Defendant Northridge Plaza Pharmacy Inc. dba South Miami Pharmacy Solutions #4 and South Miami Pharmacy II, LLC

NOTICE: ok

RELIEF REQUESTED: An order quashing three deposition subpoenas for production of business records served on employers of Plaintiff and on Plaintiff’s therapist.

RULING: The motion is denied, in part, and granted, in part, as set forth below.

This action arises out of Plaintiff’s claim that Defendant terminated her employment in retaliation for Plaintiff making a complaint to the Federal Trade Commission. Plaintiff alleges that as a result of Defendant’s conduct, she “has suffered damages including, but not limited to, loss of salary, commissions, and benefits... .” (Complaint ¶25). Additionally, Plaintiff alleges that she has suffered “emotional distress” damages and “damage to [her] future employability.” (Compl. ¶28).

Defendant served deposition subpoenas for production of business records with 1/19/21 as the date for production on: (1) DxNow, Plaintiff’s current employer; (2) California Cryobank Life Services, a company where Plaintiff applied for and accepted a position in early 2020, but was never ultimately employed; and (3) Christy Price, LMFT, Plaintiff’s therapist. On 1/19/21, Plaintiff filed the instant motion to quash the three deposition subpoenas.

Plaintiff’s failure to provide notice of this motion to the deposition officers five days before the date for production does not invalidate the motion, but would provide a defense for the deposition officers for improper release of the records. See CCP 1985.3(g); CCP 1985.6(f)(1).

The Court finds that Plaintiff was not required to file a separate statement in support of the motion because no response to the deposition subpoenas at issue had been provided. See CRC 3.1345(b).

While not fatal to the motion, the Court finds that it would have been more prudent for Plaintiff to file separate motions regarding employment records and therapy records.

The subpoenas served on DxNow and California Cryobank Life Services seek “any and all documents and records pertaining to the employment and earning of [Plaintiff], including, without limitation, all payroll, applications for employment, resumes, reference letters, interview notes and statements, offer letters, correspondence, work absentee records, incident reports, pre-employment records including exam results, employee progress reports/evaluations, medical benefits, work history records and work injury records, W-2’s workers’ compensation claims records, complaints and grievances, disciplinary action taken, promotions/demotions from the first date of employment up to and including the present date pertaining to [Plaintiff].” (Lorenz Decl., Ex.2, 3).

While Plaintiff has a right to privacy in her employment and personnel records, she has placed such information at issue in this action. Contrary to Plaintiff’s assertion in the motion that she is not making a loss of earning claim or alleging a loss of earning capacity, as noted above, Plaintiff’s complaint alleges “loss of salary, commissions, and benefits...” and “damage to [Plaintiff’s] future employability,” which are in essence loss of earning and loss of earning capacity claims. (See Motion, p.5:23 Complaint ¶¶25, 28). As such, Defendant is entitled to obtain independent evidence regarding such claims and not merely accept Plaintiff’s discovery responses as to when and if she accepted employment. Based on the foregoing, Plaintiff’s request to quash the deposition subpoenas served on DxNow and California Cryobank Life Services is denied. However, any records produced pursuant to the subpoenas are to be used only for purposes of this action and not otherwise disseminated. See CCP 1987.1(a)

The subpoena served on Christy Price, LMFT, Plaintiff’s therapist, seeks “any and all medical records, files, reports, correspondence, whatsoever, relating to any care, treatment diagnosis, prognosis, consultation and/or findings, including but not limited to, any and all reports, notes, tests, test results, diagnoses, prognoses, office records, clinic records, therapy records, emergency room records, workers’ compensation records, sign-in sheets, color photographs, patient information sheets, handwritten notes, transcriptions, prescriptions, telephone messages, electronic media and any documents in the file from other health care providers, from any all times to the present date pertaining to [plaintiff].” (Lorenz Decl., Ex.4). While Plaintiff may have placed her mental health at issue by claiming emotional distress damages, the subject subpoena is overbroad. The subpoena is not limited in time or to matters related to Plaintiff’s employment with Defendant or subsequent employment. Therefore, the request to quash the deposition subpoena served on Christy Price, LMFT is granted.