Hyelim Cho vs County of Ventura et al

Case Number

23CV01752

Case Type

Hearing Date / Time

Mon, 03/24/2025 - 10:00

Nature of Proceedings

CMC; Motion: Quash Deposition Subpoena Seeking Employment Records

Tentative Ruling

Hyelim Cho v. County of Ventura, et al.                  

Case No. 23CV01752

           

Hearing Date: March 24, 20

HEARING:              Plaintiff Hyelim Cho’s Motion to Quash Deposition Subpoena Seeking Plaintiff’s Employment Records; Request for Monetary Sanctions

ATTORNEYS:        For Plaintiff Hyelim Cho: Gregory W. Smith, Diana Wang Wells, Law Offices of Gregory W. Smith, LLP; Boris Koron, Daniel J. Podolsky, Koron & Podolsky, LLP

                                    For Defendants County of Ventura, Andrew Sullivant, and Rachelle H. Dean: Elizabeth T. Arce, Jessica Neighbors, Liebert Cassidy Whitmore                

TENTATIVE RULING:

Request No. 9, for production of Form 1099 or W-2’s shall be removed from the subpoena, and shall include language that “no tax documents are to be produced.” The motion is denied in all other respects. No sanctions are awarded.

Background:

On April 20, 2023, plaintiff Hyelim Cho filed her original complaint in this action. On June 13, 2023, without any response having been filed, Cho filed her first amended complaint (FAC) against defendants County of Ventura (County), Blake D. Heller, Miles Weiss, Lisa O. Lyytikainen, Andrew Sullivant, and Rachell H. Dean.

The FAC asserted six causes of action: (1) pregnancy discrimination; (2) disability discrimination; (3) harassment based upon pregnancy disability; (4) retaliation; (5) failure to take reasonable steps to prevent harassment, discrimination, or retaliation; and (6) retaliation in violation of Labor Code section 1102.5. The first five causes of action were all asserted as violations of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.).

On September 7, 2023, defendants filed their demurrer to the third cause of action (harassment) of the FAC. On October 23, 2023, the demurrer was sustained with leave to amend on grounds including: (1) No severe or pervasive workplace conduct was alleged so as to show the existence of an abusive working environment; and (2) There were no allegations of conduct, or participation in any conduct, by any individual defendant. The court noted: “While the court generally agrees that Cho is not required to plead the complaint with evidentiary detail, in order to meet the pleading requirements for a claim of harassment, there must be sufficient, specific facts alleged which demonstrate the hostile working environment caused by the improper conduct of specific persons, and otherwise provide sufficient facts to demonstrate the liability for that conduct by each defendant against whom liability is asserted.” (Minute Order dated October 23, 2023.)

On November 14, 2023, Cho filed her second amended complaint (SAC) asserting the same six causes of action but including additional allegations.

As alleged in Cho’s SAC:

On September 7, 2021, plaintiff Cho was hired by defendant County of Ventura (County) as a Deputy District Attorney III. (SAC, ¶ 14.) In March 2022, Cho received a merit raise. (Ibid.)

On July 6, 2022, Cho informed County’s management that she had a high-risk pregnancy and requested workplace accommodations. (SAC, ¶ 15.)

On July 8, 2022, Cho had a meeting with Terri Anderson from Human Resources and Weiss relating to plaintiff’s work restrictions and need for accommodation. (SAC, ¶ 16.) During the meeting, Weiss continuously insinuated that plaintiff’s work restrictions would not be accommodated. (Ibid.)

On July 11, 2022, Heller “suddenly and abruptly” issued Cho an untimely and punitive performance evaluation. (SAC, ¶ 17.) Cho was the only member in her unit to receive a performance evaluation at that time. (Ibid.) Heller pressured Cho into signing the evaluation without giving her ample time to review and discuss it. (Ibid.)

On July 12, 2022, Cho requested another meeting with Anderson and Weiss to discuss Cho’s pregnancy related work restrictions. (SAC, ¶ 18.) During the meeting, Weiss made “rude, snarky, and unprofessional comments” towards Cho’s pregnancy restrictions and an inability to accommodate such restrictions. (Ibid.)

On July 13, 2022, defendants issued Cho a negative performance evaluation containing numerous “Needs Improvement” ratings, as a result of which Cho’s probationary period was extended by the maximum number of hours it could have been extended for approximately six months. (SAC, ¶ 19.) Cho immediately protested this evaluation. (Ibid.) Within 30 minutes after issuing Cho the negative performance evaluation on July 13, 2022, defendants placed Cho on unpaid leave claiming her work restrictions could not be accommodated. (SAC, ¶ 20.) (Note: In the SAC, “defendants” are defined as defendant Heller, defendant Weiss, defendant Lyytikainen, defendant Sullivant, and defendant Dean collectively. (SAC, ¶ 8.) Unless otherwise indicated, the use of “defendants” here follows that same usage, and thus without reference to any particular defendant.)

On July 28, 2022, Heller held a unit meeting to discuss Cho’s work restrictions and accommodations. (SAC, ¶ 21.) Cho’s private health information was discussed among the unit members during the meeting, which was embarrassing and humiliating to Cho. (Ibid.)

On August 1, 2022, Cho was permitted to return to work with workplace accommodations. (SAC, ¶ 22.)

On October 31, 2022, Cho received an amended performance evaluation including new and different reasons for her “Needs Improvement” ratings. (SAC, ¶ 23.) All the reasons provided by defendants to substantiate the “Needs Improvement” ratings were pretext to its discriminatory or retaliatory motive. (Ibid.) Defendants’ handling of Cho’s performance evaluations and probation extension was against policy and the applicable Memorandum of Understanding (MOU). (Ibid.) Almost immediately after receiving the amended negative performance evaluation, Cho complained that defendants’ conduct towards her was in violation of the law. (SAC, ¶ 24.)

Heller would get upset and talk down to Cho for asking for assistance when she felt ill. (SAC, ¶ 25.) Heller also prevented unit members from helping Cho, while requiring Cho to help others under similar circumstances. (Ibid.) Heller also intentionally made false representations to Cho relating to her  flex benefits, telling her that due to her work restrictions she was no longer entitled to them. (Ibid.)

Heller “constantly” gave Cho a “hard time” related to Cho’s doctor appointments, including creating guidelines that only applied to Cho. (SAC, ¶ 26.) Heller would abruptly change the guidelines making it even more difficult for Cho to ask for accommodations relating to her doctor appointments. (SAC, ¶ 26.)

Defendants would exclude Cho from unit meetings and unit members would ask Cho why she was not at meetings. (SAC, ¶ 27.) Lyytikainen and Heller attempted to persuade Cho’s unit members to make disparaging allegations against Cho that they could use as a pretext to terminate Cho. (SAC, ¶ 28.)

On December 20, 2022, defendants terminated Cho’s employment because of her pregnancy, pregnancy related disability, request for workplace accommodations, and complaining about unlawful employment practices, including pregnancy discrimination. (SAC, ¶ 29.)

Defendants left Cho unemployed and without income when Cho was eight months pregnant. (SAC, ¶ 30.)

Defendants demurred to the SAC and, on February 26, 2024, the demurrer was sustained in part and overruled in part. As a result of the ruling, on June 26, 2024, the parties entered into a stipulation to dismiss Heller, Weiss, and Lyytikainen with prejudice. The parties also stipulated to striking certain portions of the SAC.

On November 13, 2024, County issued a subpoena to Cho’s former employer, Cook County State’s Attorney Office, seeking Cho’s prior employment records. (Koron Decl., ¶ 5 & Exh. 1.)

Cho now moves to quash the subpoena on the grounds that “the subpoena invades Plaintiff’s constitutional right of privacy, the documents sought are not relevant to this action, there is no compelling need for their production.” (Notice of Motion, p. 2, ll. 8-11.) Cho also seeks monetary sanctions in the amount of $6,235.00 pursuant to Code of Civil Procedure sections 1987.2 and 2023.010.

The County opposes the motion.

Analysis:

As an initial matter, County argues that Cho failed to meet and confer in good faith regarding the subpoena. The argument is unsupported by any authority that suggests that Cho had a requirement to do so. While it is always preferable that parties attempt to resolve disputes before seeking court intervention, Cho was not required to conduct a good faith meet and confer prior to filing a motion to quash subpoena.

            Records Subpoenaed

The subpoena to Cook County seeks:

“1. All DOCUMENTS relating to the EMPLOYEE’S personnel file.

“2. All DOCUMENTS relating to any discipline and reprimands imposed on the EMPLOYEE during [her] employment with YOU.

“3. All DOCUMENTS that relate and/or refer to the EMPLOYEE’S performance evaluations, including performance improvement plans, during [her] employment with YOU.

“4. All DOCUMENTS relating to any complaints by the EMPLOYEE regarding discrimination, harassment, or failure to accommodate a disability during [her] employment with YOU.

“5. All DOCUMENTS relating to any medical leave requests made by the EMPLOYEE during [her] employment with YOU.

“6. All DOCUMENTS relating to any requests for accommodation made by the EMPLOYEE during [her] employment with YOU.

“7. All DOCUMENTS relating to any workers’ compensation claims made by the EMPLOYEE during [her] employment with YOU.

“8. All DOCUMENTS that refer, reflect, or relate to the EMPLOYEE’S employment with YOU, including but not limited to, offer letters, employment agreements, job title(s), job description(s), dates of employment, and reasons for separation.

“9. Any Form 1099 or W-2 issued by YOU to EMPLOYEE.

“10. All DOCUMENTS that refer, reflect, or relate to any contracts with EMPLOYEE or contracts relating to EMPLOYEE.”

            Motion to Quash

“Any employee whose employment records are sought by a subpoena duces tecum may, prior to the date for production, bring a motion under Section 1987.1 to quash or modify the subpoena duces tecum. Notice of the bringing of that motion shall be given to the witness and the deposition officer at least five days prior to production. The failure to provide notice to the deposition officer does not invalidate the motion to quash or modify the subpoena duces tecum but may be raised by the deposition officer as an affirmative defense in any action for liability for improper release of records.” (Code Civ. Proc., § 1985.6, subd. (f)(1).)

Code of Civil Procedure section 1987.1 provides, in part:

“(a) If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, 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.

“(b) The following persons may make a motion pursuant to subdivision (a):

            (1) a party. . . .”

“A trial court must be mindful of the Legislature’s preference for discovery over trial by surprise, must construe the facts before it liberally in favor of discovery, may not use its discretion to extend the limits on discovery beyond those authorized by the Legislature, and should prefer partial to outright denials of discovery.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 540 (Williams).)

“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. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” (Code Civ. Proc., § 2017.010.)

“In accordance with the liberal policies underlying the discovery procedures, doubts as to relevance should be resolved in favor of permitting discovery.” (National Steel Products Co. v. Superior Court (1985) 164 Cal.App.3d 476, 493.)

Burden

Cho incorrectly argues that “the burden of proof is on the County to show that the information is essential to determining the truth of disputed matters, and that the information is not available from other sources or less intrusive means.” (Motion, p. 7, ll. 6-9.) In support, Cho cites cases that have been disapproved by the California Supreme Court in Williams.

As the Williams Court explained:

“A threatened invasion of privacy can, to be sure, be extremely grave, and to the extent it is, to conclude in a given case that only a compelling interest and an absence of alternatives will suffice to justify the intrusion may be right. [Citation.] But the flaw in the Court of Appeal’s legal analysis, and in the cases it relied upon, is the de facto starting assumption that such an egregious invasion is involved in every request for discovery of private information. Courts must instead place the burden on the party asserting a privacy interest to establish its extent and seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies, as Hill [v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1,] requires. What suffices to justify an invasion will . . . vary according to the context. Only obvious invasions of interests fundamental to personal autonomy must be supported by a compelling interest. [Citation.] To the extent prior cases require a party seeking discovery of private information to always establish a compelling interest or compelling need, without regard to the other considerations articulated in Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th 1, they are disapproved.” (Williams, supra, 3 Cal.5th 531at p. 557; italics added.)

Thus, the correct burden is on Cho to establish the extent of any claimed privacy invasion and the seriousness of the prospective invasion. She fails to do so. In essence, Cho simply argues, based on her incorrect assertion regarding burden, that the County cannot meet its burden.

            Cho’s Reply Brief

Perhaps realizing she relied on the incorrect burden, after reading the County’s opposition, Cho’s reply brief completely changes her argument regarding the basis of her motion. Rather than addressing the County’s correct argument that Cho misstated the burden of proof, Cho makes a new argument that the subpoena should be quashed because the documents are sought for inadmissible character purposes. The argument was not mentioned at all in the initial moving papers, and is non-responsive to the opposition. And, again, Cho again fails to apply any of this argument to the individual requests.

“ “Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the [opposing party] of an opportunity to counter the argument.’ ” [Citation.] “ ‘Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant.’ ” [Citation.] “ ‘Obvious considerations of fairness in argument demand that the [moving party] present all of his points in the opening brief. To withhold a point until the closing brief would deprive the [opposing party] of his opportunity to answer it or require the effort and delay of an additional brief by permission. Hence the rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.’ ” [Citation.]” (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.)

The arguments raised for the first time in the reply brief will not be considered. The court will state, however, that those arguments would fail.

            Separate Statement

A separate statement is required to quash a subpoena for the production of documents. (Cal. Rules of Court, rule 3.1345(a)(5).

“A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference. The separate statement must include--for each discovery request (e.g., each interrogatory, request for admission, deposition question, or inspection demand) to which a further response, answer, or production is requested--the following:

“(1) The text of the request, interrogatory, question, or inspection demand;

“(2) The text of each response, answer, or objection, and any further responses or answers;

“(3) A statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute;

“(4) If necessary, the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it;

“(5) If the response to a particular discovery request is dependent on the response given to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth; and

“(6) If the pleadings, other documents in the file, or other items of discovery are relevant to the motion, the party relying on them must summarize each relevant document.” (Cal. Rules of Court, rule 3.1345(c); italics added.)

Cho’s separate statement does not comply. It does not address each request individually. Rather, the separate statement, as well as the motion itself, lumps all the requests together and treats them as a single request for employment records.

Cho’s motion fails for this reason, as well as the substantive reasons discussed below.

            Cho’s Privacy Argument

Cho’s argument, contained in the moving papers, is almost entirely based upon a claimed right to privacy in the employment records sought by County.

“The state Constitution expressly grants Californians a right of privacy. [Citation.] Protection of informational privacy is the provision’s central concern. [Citation.] In [Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1], we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. [Citation.] The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.” (Williams, supra, 3 Cal.5th 531at p. 552.)

“The state has two substantial interests in regulating pretrial discovery. The first is to facilitate the search for truth and promote justice. The second is to protect the legitimate privacy interests of the litigants and third parties. [Citation.] “ ‘The interest in truth and justice is promoted by allowing liberal discovery of information in the possession of the opposing party. [Citation.] The interest in privacy is promoted by restricting the procurement or dissemination of information from the opposing party upon a showing of ‘ “good cause.” ’ [Citations.]” The trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery. [Citation.]” (Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145.)

As noted above, Cho has failed to meet her burden. The records sought directly relate to Cho’s claims in this matter and the requests are fairly standard for the causes of action alleged in Cho’s SAC.

           

Further, plaintiff’s often repeated argument that the County is engaging in a fishing expedition has no merit. “ ‘Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases. [Citation.]’ [Citations.]” (Cruz v. Superior Court (2004) 121 Cal.App.4th 646, 653-654.) “A request for discovery is not subject to the objection that the proponent is engaged in a “ ‘fishing expedition.’ ” In our discovery statutes the Legislature has authorized “ ‘fishing expeditions’ ” and thus “ ‘the claim that a party is engaged upon a fishing expedition is not, and under no circumstances can be, a valid objection to an otherwise proper attempt to utilize the provisions of the discovery statutes.’ [Citation.]” (Irvington-Moore, Inc. v. Superior Court (1993) 14 Cal.App.4th 733, 739, fn. 4.)

While the court would not characterize the subpoena as a “fishing expedition,” even if it did constitute a fishing expedition, the subpoena would not be improper.

However:

As noted above, Request No. 9 seeks: “Any Form 1099 or W-2 issued by YOU to EMPLOYEE.”

“Beginning with Webb v. Standard Oil Co. [(1957)]49 Cal.2d 509, [] a series of California Supreme Court and Court of Appeal decisions have considered the scope of various statutory provisions which prohibit the administrators and employees of state agencies responsible for the collection of taxes from disclosing information in tax returns. [Citations.] In each of those cases, the respective statute has been held to establish an implied privilege against compelled disclosure in civil proceedings to which the taxpayer is a party. [Citation.] The rationale for this extension of the protection beyond the literal terms of the statutes was first articulated in Webb v. Standard Oil Co., supra, 49 Cal.2d at page 513, [] where the court explained: “ ‘The effect of the statutory prohibition is to render the returns privileged, and the privilege should not be nullified by permitting third parties to obtain the information by adopting the indirect procedure of demanding copies of the tax returns.’ ” (Deary v. Superior Court (2001) 87 Cal.App.4th 1072, 1077-1078.)

Subject to exceptions, not present here: The privilege is not limited to the filed tax returns, but applies to all information in the returns and all related tax documents. (see Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1.)

The motion to quash will be denied, but the subpoena will be modified to remove Request No. 9, and include language making it clear that no tax documents are to be produced.