JAMES W. JOHNSTON

ATTORNEY AT LAW

3877 Twelfth Street

Riverside, CA 9250

State Bar No. 125287

(909) 788-0860

 

Attorney for Plaintiff

 

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN BERNARDINO, WEST DISTRICT

 

 

ANTHONY JANECEK

                      Plaintiff,

          vs.

UGLY DUCKLING CORPORATION, et al.

                      Defendants

Case No: RCV 41626

 

 

NOTICE OF MOTION AND MOTION

TO QUASH SUBPOENAS

[CCP §1987.1, §1987.2]

 

DATE: May 3, 2000

TIME: 8:30 a.m.

DEPT: 12

 

 

 

 

NOTICE IS HEREBY GIVEN that on May 3, 2000 at 8:30 a. m. in Department 12 of this court, located at 8303 N. Haven Avenue, plaintiff will move for an order quashing the deposition subpoenas issued by defendant, and served on SOUTHERN CALIFORNIA FLEET SERVICES and KELLEY STAFF LEASING which request a multitude of irrelevant and non-discoverable personnel records. True and correct copies of said subpoenas are attached to this motion and designated as Exhibit A.  [Both of the entities subpoenaed are plaintiff’s current employer--He works at Southern California Fleet Services, but is paid through Kelly Staff Leasing which provides the payroll service for Southern California Fleet Services.]

The motion will be based upon this notice of motion, on the declaration of James W. Johnston and the memorandum of points and authorities served and filed herewith, on the papers and records on file herein, and on such oral and documentary evidence as may be presented at the hearing of the motion.

 

Dated: April 3, 2000

                                                                                              ____________________________

                                                                                              JAMES W. JOHNSTON

                                                                                              Attorney for Plaintiff,

                                                                                              ANTHONY JANECEK

 

 

 

 

 

 


 

JAMES W. JOHNSTON

ATTORNEY AT LAW

3877 Twelfth Street

Riverside, CA 92501

State Bar No. 125287

(909) 788-0860

 

 

Attorney for Plaintiff

 

 

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN BERNARDINO, WEST DISTRICT

 

 

ANTHONY JANECEK

                      Plaintiff,

          vs.

UGLY DUCKLING CORPORATION, et al.

                      Defendants

Case No: RCV 41626

 

 

MEMORANDUM OF POINTS AND AUTHORIES IN SUPPORT OF MOTION TO QUASH SUBPOENAS

 

 

INTRODUCTION

This case arises from plaintiff’s termination from his employment as a lead technician at defendant Ugly Duckling Corporation’s retail used car sales facility in Montclair, California on or about March 5, 1999.  This termination occurred as a result of and in retaliation for plaintiff raising complaints and opposing management practices related to defendant selling unsafe vehicles to the public.  As discovery in this case has revealed, those practices were widespread and part of an ongoing policy by defendant to ignore serious safety problems in vehicles it was selling to the public so that the company could save money and increase its profits.  An additional motive for the termination was plaintiff’s making complaints to management about other illegal conduct occurring at his job site that involved a shop foreman stealing company property. 

STATEMENT OF THE CASE

On July 19, 1999, plaintiff filed his complaint in this action alleging causes of action for violation Tortious Discharge in Violation of Public Policy, Breach of Contract, and Breach of the Implied Covenant of Good Faith and Fair Dealing.  The complaint was timely answered by defendant who, on March 24, 1999, mail served plaintiff with copies of business records deposition subpoenas directed to SOUTHERN CALIFORNIA FLEET SERVICES and KELLEY STAFF LEASING [As noted in the foregoing, both of these entities are, in essence, plaintiff’s current employer. He works at Southern California Fleet Services, but is paid through Kelly Staff Leasing which provides the payroll service for Southern California Fleet Services. (Exhibit A.)  Each deposition subpoena seeks:

“All records or documents referring or related to Anthony James Janecek (aka Anthony Janecek)’s employment and the termination of that employment, including without limitation: any personnel or employee file(s); any investigation or claims file(s); any application for employment; records of reference checks; performance reviews and appraisals; employment contracts or employment agreements; pay plans or commission agreements; attendance records; disciplinary or counseling records, memoranda or notes; personnel change notices; complaints or grievances by him or about him by others; and all other documents which are maintained in personnel or employee files as a matter of your company’s practice… All records or documents referring or related to Anthony James Janecek (aka Anthony Janecek)’s compensation and earnings arising from his employment at your company, including without limitation; all payroll records, commission reports and backup documentation, bonus payments, form W-2, form 1099 or other earnings reports submitted regarding Anthony James Janecek (aka Anthony Janecek) to state or federal tax agencies.”

After receiving copies of defendant’s subpoenas, plaintiff prepared and filed this motion.

///

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SUMMARY OF LEGAL ARGUMENTS

 

         1.           RIGHT TO PRIVACY: Personnel files at a person's place of work are within a constitutionally protected zone of privacy, set forth under Article I, Section 1 of California’s Constitution, and this protection applies both to first party and third party personnel records.[1] (See Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516 at pages 526, 528-529; El Dorado Savings and Loan Assoc. v. Superior Court (1987) 190 Cal.App.3d 342.)

         2.           RELEVANCE: The standard applicable to general discovery, i.e. that items need only be reasonably calculated to lead to the discovery of admissible evidence, is inapplicable to the discovery of items protected by a right to privacy in which the threshold requirement is that such items must be directly relevant. Britt v. Superior Court (1978) 20 Cal.3d 844; Tylo v. Superior Court (1997) 55 Cal.App.4th 1379. The records being sought by defendant’s subpoenas are from employers with whom plaintiff worked subsequent to his employment with defendant, and the majority of the records requested can under no stretch of the imagination be considered directly relevant to this case.  In fact most of the records sought would not even be indirectly relevant, particularly any disciplinary records that would be inadmissible at trial under Evidence Code §1101(a). 

         3.           NO WAIVER OF PRIVACY BY FILING THIS ACTION:  In trying to obtain an employees entire personnel file from a previous employer, defense counsel frequently try to argue that the employee has waived his right to privacy by filing a lawsuit.  However, it is settled law that a party does not completely waive his or her right to privacy by filing a lawsuit. (See Britt v. Superior Court, supra, 20 Cal.3d at page 858.)   Moreover personnel records are discoverable, but only if the party seeking these items can establish that they are directly relevant to the case, and if the court concludes they are discoverable after balancing the need for disclosure against the employee's right to privacy. Board of Trustees v. Superior Court, supra 119 Cal.App.3d at page 525; Britt v. Superior Court, supra, 20 Cal.3d 844; Tylo v. Superior Court (1997) 55 Cal.App.4th 1379.

         4.           OVERBROAD:  As will be seen below, the wording of plaintiff’s subpoenas is so overbroad that it seeks items that not only are not directly relevant to this case as is required, but also items that would not even be reasonably calculated to lead to the discovery of admissible evidence. 

 

LEGAL AUTHORITY

California Code of Civil Procedure, §1987.1 provides in pertinent part:

"When a subpoena requires the attendance of a witness or the production of books, documents or other things... at the taking of a deposition, the court, upon motion reasonably made by the party.... may make an order quashing the subpoena entirely, modifying it, or directing the compliance with it upon such terms or conditions as the court shall declare.”

 

RIGHT TO PRIVACY:

Defendant’s subpoenas seek documents that are constitutionally protected from disclosure.  As noted in Board of Trustees v. Superior Court, supra, 119 Cal.App.3d 516, confidential personnel files at a person's place of work are within a constitutionally protected zone of privacy.  Accordingly, any such documents sought, must be directly relevant to the case, not merely reasonably calculated to lead to the discovery of admissible evidence. (Id. page 524-525); (also see Britt v. Superior Court (1978) 20 Cal.3d 844.)  Even when such information is directly relevant, it is not automatically discoverable, instead there must be a `"careful balancing" of "compelling public need" for discovery against the "fundamental right of privacy."' (Id. p. 525.)

NEED TO BE DIRECTLY RELEVENT:

Because the records sought from plaintiff former employers are constitutionally protected by a right to privacy, the party seeking discovery of such items is not permitted to engage in the type of “fishing expedition” that is permissible with respect to general discovery.  In fact, this issue was specifically addressed in Tylo v. Superior Court (1997) 55 Cal.App.4th 1379, where the court held on page 1387 of its decision:

“While the filing of the lawsuit by petitioner may be something like issuing a fishing license for discovery, as with a fishing license, the rules of discovery do not allow unrestricted access to all species of information. Discovery of constitutionally protected information is on a par with discovery of privileged information and is more narrowly proscribed than traditional discovery. (Britt v. Superior Court, supra, 20 Cal.3d at pp. 852-853.)”

In this case, the only records that would be directly relevant to plaintiff’s case, or even reasonably calculated to lead to the discovery of admissible evidence, would be those records documenting plaintiff’s starting date at his new employment after defendant fired him. These records would be relevant to the issue of the duration of plaintiff’s wage loss during the period of time he was unemployed after being terminated by defendant.  However, the amount of compensation would not be relevant since plaintiff has already conceded in this action that his current employment started at a higher compensation than what he was making while working for defendant. Similarly, any disciplinary records sought would neither be directly relevant nor reasonably calculated to lead to the discovery of admissible evidence since such records would be inadmissible at trial under Evidence Code §1101(a). 

In the context of discovery of confidential information in personnel files, even when such information is directly relevant to litigation, discovery will not be permitted until a balancing of the compelling need for discovery against the fundamental right of privacy determines that disclosure is appropriate. (Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 525.) And, even when the balance tips in favor of disclosure, constitutional concerns require a strict circumscription of the scope of the disclosure. (Id, at p. 526.)

WAIVER ARGUMENT NOT APPLICABLE:

          As noted above, defendant employers sometimes try to argue that by initiating a legal action, a plaintiff employee has waived any right he has to privacy with respect to any personnel files or records pertaining to previous or subsequent employment.  However, as also noted in the foregoing, there is no case law or statutory support for such an assertion.  In fact, courts have uniformly held that with respect to information or items protected by a right to privacy, a litigant only waives the privilege to the limited extent that such items may be discoverable if they are directly relevant to the case.  Even then they are only discoverable after the court balances the need for discovery against the privacy interest being protected. (See Britt v .Superior Court, supra 20 Cal.3d 844; Tylo v. Superior Court, supra, 55 Cal.App.4th 1379.) 

OVERBROAD:

Even if payroll records from plaintiff’s previous employers were directly relevant to this action, and they are not, the subpoenas are not limited to just this type of record.  What they seek are any and all documents under the sun that might in any way be included in or related to plaintiff’s personnel file.  In that regard, each subpoena would compel these previous employers to produce:

“All records or documents referring or related to Anthony James Janecek (aka Anthony Janecek)’s employment and the termination of that employment, including without limitation: any personnel or employee file(s); any investigation or claims file(s); any application for employment; records of reference checks; performance reviews and appraisals; employment contracts or employment agreements; pay plans or commission agreements; attendance records; disciplinary or counseling records, memoranda or notes; personnel change notices; complaints or grievances by him or about him by others; and all other documents which are maintained in personnel or employee files as a matter of your company’s practice… All records or documents referring or related to Anthony James Janecek (aka Anthony Janecek)’s compensation and earnings arising from his employment at your company, including without limitation; all payroll records, commission reports and backup documentation, bonus payments, form W-2, form 1099 or other earnings reports submitted regarding Anthony James Janecek (aka Anthony Janecek) to state or federal tax agencies.”

As can readily be seen, these subpoenas seek plaintiff’s entire personnel file including not only payroll records, but also a multitude of other items, including non-admissible disciplinary records, which essentially include any conceivable type of record that might be in the possession of an employer.   As such, the subpoenas are constitutionally overbroad, and plaintiff requests that defendant’s subpoenas be quashed for this additional reason.

 

CONCLUSION

For all of the reasons as set forth above, plaintiff requests this court to make an order quashing the subpoenas issued and served on Southern California Fleet Services and Kelley Staff Leasing.

 

 

Dated: April 3, 2000

                                                                                              ____________________________

                                                                                              JAMES W. JOHNSTON

                                                                                              Attorney for Plaintiff,

                                                                                              ANTHONY JANECEK


 

JAMES W. JOHNSTON

ATTORNEY AT LAW

3877 Twelfth Street

Riverside, CA 92501

State Bar No. 125287

(909) 788-0860

 

 

Attorney for Plaintiff

 

 

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN BERNARDINO, WEST DISTRICT

 

 

ANTHONY JANECEK

                      Plaintiff,

          vs.

UGLY DUCKLING CORPORATION, et al.

                      Defendants

Case No: RCV 41626

 

 

DECLARATION OF COUNSEL

I, James W. Johnston, declare that:

1.  I am an attorney at law duly licensed to practice before all courts of the State of California, and am attorney of record for plaintiff ANTHONY JANECEK;

2.  All of the Exhibits attached to this motion are true and correct copies of documents in my file in this matter.

I declare under penalty of perjury that the foregoing is true and correct, except for those matters stated on information and belief, and as to those statements, I believe them to be true.  I further declare that this declaration was executed at Riverside, California, on this 3rd day of April, 2000.

 

                                                                                             ____________________________

                                                                                              JAMES W. JOHNSTON

                                                                                              Attorney for Plaintiff,

                                                                                              ANTHONY JANECEK


PROOF OF SERVICE

 

 

STATE OF CALIFORNIA, COUNTY OF RIVERSIDE:

          I am employed in the County of Riverside, State of California.  I am over the age of 18 and not a party to the within action; my business address is 3877 Twelfth Street, Riverside, California.

On this date, I served the foregoing documents described as:

 

NOTICE OF MOTION AND MOTION TO QUASH SUBPOENAS

by placing a true copy thereof enclosed in a sealed envelope addressed as follows:

 

Christy D. Joseph, Esq.

SNELL & WILMER

P.O. Box 19601
Irvine, CA 92623-9601

 

[xx] (BY MAIL) as follows: I am readily familiar with the office's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Riverside, California, in the ordinary course of business.

[  ] (BY PERSONAL SERVICE) I caused the above described document[s] to be delivered by hand to the offices of the addressee.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on April 3, 2000, at Riverside, California.

 

 

 

_______________________________                          

                                                                                                            DONNA WEBER

 



[1] Although a party may obtain his or her own personnel records, subject to restrictions as to any third party contents, under the provisions of Labor Code §1198.5.