TWO MOTIONS (LEAVE TO AMEND, QUASH SUBPOENAS)
- Motion to Quash
Defendant Suvarna Durgiah moves to quash two subpoenas that were propounded by Plaintiff WMC-SA Inc. to her former employers:? 1) Riverside County Regional Medical Center; and 2) Kaiser Permanente.
SUBPOENA #1 to RIVERSIDE COUNTY REGIONAL MEDICAL CENTER is for:
Any and all WRITINGS (as defined by Evidence Code section 250) relating to, or referring in any way to Suvarna Durgiah’s (DOB: x/xx/xxxx, California Nursing License No. 585038) employment or work at your facility in any other capacity including, but not limited to: resumes, applications, letters of recommendation, new hire documents, disciplinary documents, background checks, personnel change notifications, payroll records, employee evaluations, certifications, examinations, workers’ compensation claims, medical leave documents, termination documents, correspondence, complaints filed by and against her, and all other matters related to said individual.
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SUBPOENA #2 to KAISER PERMANENTE is for:
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Any and all WRITINGS (as defined by Evidence Code section 250) relating to, or referring in any way to Suvarna Durgiah’s (DOB: xx/xx/xxxx, California Nursing License No. 585038) employment or work at your facility, Kaiser Permanente Riverside Medical Center including, but not limited to: resumes, applications, letters of recommendation, new hire documents, disciplinary documents, background checks, personnel change notifications, payroll records, employee evaluations, certifications, examinations, workers’ compensation claims, medical leave documents, termination documents, correspondence, complaints filed by and against her, and all other matters related to said individual.
LEGAL STANDARDS
?The court, upon motion reasonably made by any person described in subdivision (b) [including a party or consumer whose records are sought], 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.?? CCP ?1987.1.
Personnel records are protected by the constitutional right of privacy in California.?? Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 524-25; Harding Lawson Associates v. Superior Court (1992) 10 Cal.App.4th 7, 10; El Dorado Savings & Loan Assn. v. Superior Court (1987) 190 Cal.App.3d 342, 345.? So too is one?s medical information and medical history. Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669, 679; Pettus v. Cole (1996) 49 Cal.App.4th 402, 440.
The party seeking to incur in an area of fundamental privacy, has the burden to show the documents sought are directly relevant to the case and are essential to determining the truth of the matters in dispute. Harris v. Sup. Ct (1992) 3 Cal.App.4th 661, 665; Britt v. Superior Court (1978) 20 Cal.3d 844, 861.? It is not enough to posit that the discovery may lead to relevant information.? Inquiry into one’s private affairs will not be constitutionally justified simply because inadmissible and irrelevant matter sought to be discovered might lead to other relevant evidence.? Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 525; Binder v. Sup. Ct. (1987) 196 Cal.App.3d 893, 901.
?[E]ven 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. And, even when the balance tips in favor of disclosure, constitutional concerns require a strict circumspection of the scope of the disclosure.?? El Dorado Savings & Loan Assn. v. Superior Court (1987) 190 Cal.App.3d 342, 345-56.
?In addition, consideration should be given to whether less intrusive means, such as depositions, will yield the information sought.??? Id.; Harris v. Sup. Ct (1992) 3 Cal.App.4th 661, 665.?? Where the information is reasonably available from other sources, the intrusion may not be warranted.? Life Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640, 654 (?.? . . the features of the Special Severance Plan were publicized throughout the company, including the criteria by which an employee would or would not receive a severance package. Accordingly, the record indicates Joyce does not need private information from individual personnel files to support his claim that he was denied such benefits in retaliation for his complaints of age discrimination?).
Finally, if disclosure is ordered, the person whose records are to be produced may be entitled to a protective order that limits use and disclosure of protected information. Harris v. Superior Court (1992) 3 Cal.App.4th 661, 668.
DISCUSSION
Plaintiff WMC-SA (?Plaintiff?) contends it is entitled to obtain the entire personnel files of Defendant Durgiah (?Nurse Durgiah?) from the two former employers.? Plaintiff argues that Nurse Durgiah was terminated from her positions with the former employers, for professional reasons that were related to mishandling of medications (narcotics) in terms of documentation and administering to patients, that the State Nursing Board filed an accusation against her in relation to those events, and the Board ultimately disciplined Durgiah for such errors that took place in the year 2008 at these former employers.? In the current lawsuit, Plaintiff argues that it is alleging that Ready Link negligently placed Nurse Durgiah with Plaintiff, and further, that lawsuit filed by patient Stearns against Plaintiff was allegedly due to Nurse Durgiah?s inattentive care of the patient for which Plaintiff seeks indemnity from Defendants.? (See Vaugh Decl. ?2 and see Complaint).? For these reasons, Plaintiff seeks Nurse Durgiah?s personnel records from these former employers.
First, to the extent that professional negligence in the past is the stated reason for obtaining records, Plaintiff fails to provide sufficient justification at this time to obtain the broad scope of records sought.? Evidence Code 1101 generally prohibits the introduction of prior instances of misconduct.? Evid. Code ?1101 (?Except as provided in this section and in Sections 1102, 1103, 1108, and 1109 [relating to criminal actions], evidence of a person?s character or a trait of his ? character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.?).? Therefore, Plaintiff needs to but has not shown that past discipline or errors at prior places of employment is directly relevant at this time.
Second, the operative complaint does not in fact allege that Ready Link was negligent in investigating or placing Durgiah.? Rather, the Complaint alleges that ReadyLink breached the contract with Plaintiff, by not indemnifying Plaintiff for the Stearns lawsuit.? (See Compl. ?? 9, 10, 13, 15, 17, 19-21).?? The professed lynchpin seems to be missing: an allegation that ReadyLink was required to investigate Durgiah?s employment history, breached an obligation in this respect and that it causally caused damages to Plaintiff.
However, after this Motion to Quash was filed by Durgiah, Plaintiff undertook to file a Motion for leave to amend the Complaint to add such allegations.? Plaintiff?s motion is scheduled to be heard with the present motion.? The Court can probably consider Plaintiff?s request, as it may be in the interests of justice to grant the accompanying motion for leave to amend. (See Motion #2 on calendar).
However, even if the issues claimed do become part of the case, the Subpoenas far exceed the scope of what could reasonably be considered as relevant to the suggested topics.? The Subpoenas are grossly overbroad ??For example, Plaintiff argues in the opposing papers, that? financial or medical information are not sought by these Subpoenas (Opp. Brief at 4:16) but the Subpoenas do in fact seek such information by way of requesting Durgiah?s payroll records, her workers compensation claims, and information about her medical leaves (if any). (See Moving Separate Statement).? There is no attempt by Plaintiff to justify this broad scope of records, and show the direct relevance of such private matters.? The Court reasonably should quash much of the Subpoenas.
There appears to be a link missing in the Plaintiff?s argument at this time.? The Court is not shown how the personnel files that Plaintiff seeks, and information in them, would have been disclosed to ReadyLink, and shared with ReadyLink by the former employers.? Plaintiff?s papers do not address this connection.
It is noted that Plaintiff appears to have some of the key information from existing discovery, or alternative sources.? In opposition to the Motion for leave to amend, Durgiah?s counsel avers that she has produced in discovery the Accusation filed by the Nursing Board against her, as well as producing the Board?s Decision and Order imposing discipline based on her professional misconduct at these former places of employment.? (See Motion, at Gross Decl. ? 5; see Opp., Vaughn Decl., ?3-4 and Notice of Lodgment, Exhibit 2; and see Durgiah?s Opp. to concurrent Mot. to Amend Complaint, at Gross Decl., ?3 and Exhibits).
The Court is informed further, that Durgiah has admitted in deposition that her employment was terminated by the past employers due to the professional errors.? (See Mot. Gross Decl. ? 5).? Plaintiff complains that Durgiah is not clearly admitting her fault in those matters, but there is a public record of her signed Stipulated Settlement and Disciplinary Order, admitting to the truth of the State Board?s charges against her in writing.? (See Durgiah Opp. to Mot. to Amend, at Gross Decl., ?3 and Exhibits).
Thus, the fact and existence of the professional errors and discipline does not appear to be reasonably in dispute.
It appears that Plaintiff may need evidence that Ready Link failed to investigate or find about such issues, but the Court is informed that ReadyLink has already ?admitted in deposition that it never contacted Durgiah?s prior employers?.? (Opp., Vaugh Decl. ? 2).? From this, it appears that Plaintiff has an admission to support its charges.
This is to say, at this time, Plaintiff has not succeeded in showing there is a compelling need for production of the broad personnel files from the former employers.? Given disclosures that are apparently being given in discovery, the question arises whether Plaintiff has asked Defendant Durgiah directly to produce records of discipline, or inquired of the matters by means of interrogatories.? It is not shown that such narrower discovery has been pursued first.? Since Durgiah apparently admitted to the termination and the reasons for the termination at her deposition (see Moving Gross Decl. ? 5), as well as there being a public record of the mistakes in the past employment (see Stipulated Settlement and Disciplinary Order in In the Matter of the Accusation against Suvarna Durgiah, Case No. 2012-444, attached to Durgiah?s Opp. to Motion for Leave to Amend, Ex. 1) — Durgiah might enjoy less of a privacy interest in such matters.? It would be less intrusive to seek records and information from the party directly rather than subpoenaing the entire contents of a protected personnel file from the employer.
The parties should confer about these matters going forward.? The parties should also consider entering into a stipulated protective order, if one is not in place.
At this time, it appears appropriate to grant the Motion to Quash both Subpoenas (without prejudice) but except for the following records to be produced:?
- Any records showing there was communication or inquiries to or from ReadyLink Inc., or anyone acting on behalf ReadyLink, with these former employers (the Riverside County Regional Medical Center or Kaiser Permanente), concerning Suvarna Durgiah.
Records may be redacted before production to protect third party information or other confidential information.
This ruling is without prejudice to pursuit of any future reasonably tailored discovery in the case.
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- Motion to Amend Complaint
Plaintiff WMC-SA Inc. wishes to file a First Amended Complaint in the case.? Plaintiff would expand on the existing cause of action for Breach of Contract that is asserted against ReadyLink the 1st c/a).? Specifically, Plaintiff would add that ReadyLink allegedly breached provisions of the contact that specify the screening that ReadyLink would perform in relation to personnel that would be placed with Plaintiff.? (See Proposed First Amended Complaint p. 4).
ReadyLink has not presented any timely written opposition to this Motion for Leave to Amend.? Approximately three days after its co-defendant, Suvarna Durgiah, filed a timely opposition to this motion, Ready Link filed a late ?joinder? in Suvarna?s opposition.? The joinder is late (see CCP 1005(b) (all opposing papers are due 9 court days before hearing)), and the joinder offered no substantive discussion of the amendments as they relate to ReadyLink and no evidence in the form of declarations or otherwise to demonstrate any individualized impact or prejudice.? See Cal. Prac. Guide Civ. Pro. Before Trial ?6:668 (Rutter Group 2016) (declarations should be submitted).? For these reasons, the joinder was not effective.
Plaintiff also intends to add a new cause of action for negligence against ReadyLink and Durgiah.? It is sparsely plead and it alleges that Defendant Durgiah breached a ?duty of care? by failing to meet the ?nursing standard of care? while caring for Plaintiff?s patients.? The damages alleged in this c/a appear to be the same, the damages, stemming from the Stearns lawsuit.? In this respect, the claim appears to be an alternative legal theory arising from the same general facts.
The new cause of action would also be brought against ReadyLink for allegedly breaching an unspecified ?tort? duty to investigate the co-defendant before placing her with plaintiff, independent of the alleged contract-based duties.
Defendant Durgiah opposes this amendment.? She correctly points out in her opposing papers that Plaintiff has not been clear in identifying in the moving papers the date of discovery of the underlying facts.? Defendant points out that the State?s accusation, and discipline orders were produced by her to Plaintiff in discovery almost two years ago in February 2014.? (See Opp. Gross Decl ?4).? How did Plaintiff then uncover the alleged negligent placement only recently?
To support the amendments, Plaintiff?s papers also highlight the fact that the PMK of ReadyLink (Ann Watts) testified in deposition that ReadyLink apparently had not contacted former employers and inquired of them regarding Durgiah?s history. (Vaughn Decl. ? 3).? This forms the basis of the proposed amendments (see Proposed FAC ? 14 (failure to contact the former employers is an alleged breach).? As Durgiah points out in her opposition papers, the PMK?s testimony was given in September of last year.? (Gross Decl. ? 4).? This too raises a question of the timing of this motion, which was filed apparently 7 months later in May of this year.
Thus, timeliness is an issue.? However, weighing against this, courts have a policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits where the authorization does not prejudice the substantial rights of others.? It is a rare case in which ?a court will be justified in refusing a party leave to amend his [or her] pleading so that he [or she] may properly present his [or her] case.?? Board of Trustees of Leland Stanford Jr. University v. Superior Court (2007) 149 Cal.App.4th 1154, 1163; W&W El Camino Real, LLC v. Fowler (2014) 226 Cal.App.4th 263, 270; Central Concrete Supply Co v. Bursak (2010) 182 Cal.App.4th 1092, 1101-1102.? Prejudice exists where amendment would require delaying the trial, resulting in loss of critical evidence or added costs of preparation, increased burden of discovery, etc.? Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 486-488.? Mere proximity to trial is not sufficient grounds upon which to deny leave to amend, absent clear prejudice.? Honig v. Financial Corp. of America (1992) 6 Cal.App.4th 960, 967.
Here, the parties have recently asked the Court to and the Court has granted the request, to postpone the trial to a date in November 2016.? There are approximately 4 to 5 months ahead for Defendants to engage in discovery about the proposed theory.? The amendments generally stem from the same contract between the corporate parties, the same relationships of the parties, and it appears that Plaintiff seeks the same damages that are at stake in the existing claims.? (See Proposed FAC ? 26, 19)
Under the circumstances, it appears to be in the interest of justice to allow Plaintiff?s proposed amendments.
Although it may not be required, the Court may consider a reasonable request for the Defendants to have time to prepare dispositive motions, to address the new theory.? See CCP ? 473(b) (?When it appears to the satisfaction of the court that the amendment renders it necessary, the court may postpone the trial . .?.?); Cal. Prac. Guide Civ. Pro. Before Trial ?6:664 (Rutter Group 2015).?In summary, Plaintiff?s Motion to Amend the Complaint is granted.?? ?Plaintiff shall file a copy of the First Amended Complaint in the form that is attached to the moving paper, as a standalone pleading in the Court?s files, within three days.
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