Preview
1 Joseph H. Low IV (SBN 194897)
2
THE LAW FIRM OF JOSEPH H. LOW IV
100 Oceangate, 12th Floor ELECTRONICALLY
3 Long Beach, CA 90802 F I L E D
Telephone: (562) 901-0840 Superior Court of California,
4 County of San Francisco
Facsimile: (562) 901-0841
5
08/21/2020
Roger Y. Muse (SBN 147120) Clerk of the Court
BY: RONNIE OTERO
6 John R. Matheny (SBN 149532) Deputy Clerk
EXCELSIOR LAW
7 9595 Wilshire Blvd., Suite 900
Beverly Hills, CA 90212
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Telephone: (310) 205-3981
9 Facsimile: (310) 205-0594
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Attorneys for Plaintiff, WINONA POWERS
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12
SUPERIOR COURT OF THE STATE OF CALIFORNIA
13 IN AND FOR THE COUNTY OF SAN FRANCISCO
14 WINONA POWERS, an individual Case No.: CGC-19-581624
15
DISCOVERY
Plaintiff,
16 vs. PLAINTIFF’S REPLY TO DEFENDANT’S
“AMENDED” OPPOSITION TO MOTION
17 LEVI STRAUSS & CO., a Delaware Corp.; FOR ORDER TO QUASH SUBPOENAS;
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and DOES 1-25, inclusive, OPPOSITION TO REQUEST FOR
SANCTIONS
19 Defendants
Date: August 28, 2020
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Time: 9:00 a.m.
21 Dept: 302
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23 Plaintiff, Winona Powers (Powers), respectfully submits this reply memorandum of
24 points and authorities in opposition to , defendants “amended” opposition to motion for order to
25 quash subpoenas and in opposition to defendant’s request for monetary sanctions against
26 plaintiff’s counsel in the amount of $1,000.
27 ///
28 ///
1
PLAINTIFF’S REPLY TO “AMENDED” OPPOSITION TO MOTION TO QUASH
1 I.
2 DEFENDANT WAS NOT ENTITLED TO FILE AN ADDITONAL OPPOSITION TO
3 PLAINTIFF’S MOTION AND AS SUCH, THE COURT SHOULD NOT CONSIDER ITS
4 ADDITIONAL ARGUMENTS.
5 Oddly, although Defendant had filed an opposition to Plaintiff’s Motion for Order to
6 Quash Subpoenas, and Plaintiff has filed a Reply to that Opposition, Defendants in the interim
7 during the continuance of the hearing on the Plaintiff’s Motion, Defendant filed an “Amended”
8 Opposition wherein Defendant makes additional arguments which it did not make in its
9 Opposition. There is no authority for Defendant’s filing of a second opposition to Plaintiff’s
10 Motion. Due to Defendant’s abuse of process Plaintiff has now had to file yet another reply in
11 order to address Defendant’s new arguments. The Court should not countenance Defendant’s
12 abuse of process and should not consider Defendant’s “Amended” Opposition.
13 Although Plaintiff objects to the Defendant’s filing of its Amended Opposition, Plaintiff
14 will again address the issued raised including Defendant’s new arguments in the event that the
15 Court considers Defendant’s Amended Opposition notwithstanding Defendant’s objection.
16 II.
17 DEFENDANT HAS FAILED TO MEET IT BURDEN OF SHOWING EVEN THE
18 RELEVANCE OF THE DOCUMENTS SOUGHT IN THE SUBPOENAS, LET ALONE
19 ANY NEED (“COMPELLING” OR OTHERWISE) FOR THE DOCUMENTS
20 SUFFICIENT TO OUTWEIGH PLAINTIFF’S PRIVACY RIGHT IN THOSE
21 DOCUMENTS.
22 A. The “Compelling Need” Standard for Overcoming Plaintiff’s Privacy Objections is
23 Applicable to the Information Sought by Defendant’s Subpoenas
24 Ironically, although Defendant accuses Plaintiff of misrepresenting the law regarding the
25 burden of proof Defendant must meet in order to overcome Plaintiff’s privacy objection, it is
26 Defendant that misrepresents the law. The California Supreme Court in its decision in Williams
27 v. Superior Court, (2017) 3 Cal. 5th 531, did not disapprove the “compelling interest” standard
28 applicable to information protected by the right of privacy; the Court merely indicated that the
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PLAINTIFF’S REPLY TO “AMENDED” OPPOSITION TO MOTION TO QUASH
1 standard did not always apply in the face of every privacy objection. Rather, the Court held that
2 the level of the showing required is dependent upon the seriousness of the potential invasion of
3 the privacy interest occasioned by the challenged discovery. Id. 557.
4 On the contrary, the Court confirmed that permitting discovery of information protected
5 by the right of privacy on the basis of a showing of relevance under Code of Civil Procedure
6 section 2017.010 alone constitutes an abuse of discretion. Id. at 556.
7 In Williams, the private information at issue was the contact information of the
8 defendant’s employees who could potentially participate in the plaintiff’s PAGA claim based
9 upon the defendant’s Labor Code violations. Although the Court confirmed that employee-
10 contact information came within the privacy right, the Court held that in the context of the
11 employees’ potential participation in the PAGA action, the employee’s privacy interest was
12 limited and did not justify the satisfaction of the “compelling interest” standard in order to be
13 outweighed. Significantly for the present case, the Court contrasted the privacy interest there at
14 issue with matters where a stronger privacy interest has been recognized:
15 While less sensitive than one's medical history or financial data,
"home contact information is generally considered private."
16
17 Id. at 554 (bolding added).
18 As is discussed in Plaintiff’s Memorandum supporting her motion, the courts have
19 recognized a very strong privacy interest in financial and employment information. (El Dorado
20 Sav. & Loan Ass'n v. Superior Court, (3rd Dist., 1987) 190 Cal. App. 3d 342; Moskowitz v.
21 Superior Court, (1982) 137 Cal. App. 3d 313, 316-317 (overruled on other grounds, Williams v.
22 Superior Court, (2017) 3 Cal. 5th 531, 557 fn 8.; Gordon v. Superior Court, (2nd Dist., 1997) 55
23 Cal. App. 4th 1546, 1557. ) The “compelling interest” standard unquestionably remains
24 applicable to Plaintiff’s financial information contained in the documents sought, and is
25 particularly appropriate here given the outrageously invasive scope of Defendant’s subpoenas. 1
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27 Contrary to Defendant’s assertion, the Court in Williams did not “disapprove” the “compelling need”
standard nor did it disapprove of the application of that standard by the court in Moskowitz. The Court
28 disapproved Moskovitz the other cases listed in its footnote 8 only to the extent that those decisions held that
the “compelling need” standard was always applicable in the face of a privacy objection. Williams, 3 Cal. 5th
at 557, fn 8.
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PLAINTIFF’S REPLY TO “AMENDED” OPPOSITION TO MOTION TO QUASH
1 Although Defendant pretends that Plaintiff has not identified the documents sought by the
2 subpoenas as coming within the privacy privilege, Defendant itself confirms that the documents
3 sought will include Plaintiff’s tax return forms, payment information and employment
4 information. In fact, given the scope of the requests stated in the subpoenas (please see Matheny
5 Dec., Exhibits A-E, “Attachment 3” to each), to argue that the documents sought do not include
6 personal financial and employment information is to patently argue in bad faith. It is apparent
7 from the subpoenas themselves that the documents sought include all of Power’s employment
8 information for the past 15 years, including all of her employment income and tax
9 information for that period.
10 As is discussed below, far from having met its burden of showing a compelling need (or
11 indeed any need) sufficient to outweigh Plaintiff’s privacy interest, Defendant has failed to show
12 that the documents sought in its outrageously intrusive subpoenas are relevant even under Code
13 of Civil Procedure section 2017.010.
14 B. Plaintiff Has Not Waived Her Privacy Rights in Her Financial and Employment
15 Information.
16 In an attempt to evade Plaintiff’s privacy objections, Defendant argues that by filing her
17 claim for waiting-time penalties, Plaintiff has waived her privacy objections as to all of the
18 financial and employment information sought in the subpoenas. The case cited by Defendant in
19 support of its waiver assertion are all premised on the plaintiff’s placing of the otherwise private
20 information directly at issue in the litigation. Those cases are simply inapplicable to the present
21 case.
22 Defendant’s waiver assertion is patently absurd; so much so, that Defendant makes no
23 real attempt at explaining what in Plaintiff’s claim for penalties constituted a waiver of her
24 privacy rights in the information concerning her employments unrelated to her employments
25 with Defendant. In her claims against Defendant, Plaintiff seeks only penalties, the amount of
26 which, pursuant to Labor Code section 203, are solely a function of wage rate agreed to between
27 Defendant and Plaintiff’s talent agency for each employment, and the number of days by which
28 the payment was made after the wages for the employment came due (for a maximum of 30
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PLAINTIFF’S REPLY TO “AMENDED” OPPOSITION TO MOTION TO QUASH
1 days). (Lab. Code § 203) Plaintiff does not seek damages of any kind against Defendant, and as
2 such, her income and earning capacity are in no way relevant to her claims. Thus, Plaintiff has
3 not placed her financial information unrelated to her employments with Defendant at issue.
4 Neither has she placed information regarding her employments with other employers at issue.
5 As such, she has not in any way made a general waiver of her privacy rights in her financial and
6 employment information.
7 As Defendant noted in its Amended Opposition, Plaintiff has no objections to the
8 production of financial and employment information directly related to her employments with
9 Defendant. Likewise, had Defendant limited its subpoena to Look Model Agency to documents
10 related to Plaintiff’s employments with Defendant, Plaintiff would not have objected to that
11 subpoena. However, it is unreasonable and unwarranted to extrapolate from that a general
12 waiver of Plaintiff’s financial and employment information unrelated to her employments with
13 Defendant.
14 C. Defendant’s Dredging for Evidence to Impugn Plaintiff’s Credibility Does Not
15 Outweigh Plaintiff’s Privacy Interest in the Information Sought in the Subpoenas.
16 In yet another vain attempt to establish some relevance for its subpoena to Bank of
17 America, Defendant asserts that “’[E]vidence bearing on a witness’ credibility is always
18 relevant.’” (Amended Opposition, P. 6, LL. 6-10) This, Defendant quotes from a practice guide
19 and cites as authority a federal trial court in New York. From that statement alone, Defendant
20 attempt to justify its subpoena to Bank of America seeking all of Plaintiff’s employment records
21 from 15 years of Plaintiff’s employment with Bank of America; an employment unrelated in any
22 way to her employments with Defendant and unrelated to her modeling work. Defendant
23 speculates that, in all those employment records, it might be able to dredge up some kind of dirt
24 with which it might impugn Plaintiff’s credibility “particularly in light of the fact that after 15
25 years with the bank, Plaintiff’s employment was suddenly terminated and, upon information and
26 belief, she has not found work outside of modeling since.” (Amended Opposition, P. 6, LL. 3-6)
27 Of course, Defendant does not bother to even attempt to identify an issue in this case for
28 which Plaintiff credibility may be called into question. Rather, Defendant believes that because
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PLAINTIFF’S REPLY TO “AMENDED” OPPOSITION TO MOTION TO QUASH
1 “credibility is always relevant” it has an unlimited right to probe into any area of Plaintiff’s life,
2 even areas protected by Plaintiff’s right of privacy, in order to find something, anything, to
3 impugn Plaintiff’s credibility just in case her credibility comes into issue.
4 Obviously, if Defendant’s formulation of the law governing discovery were correct, since
5 “credibility is always at issue,” there would be no limitation on the scope of discovery
6 whatsoever; the limitations placed on the scope of discovery by Code of Civil Procedure section
7 2017.010 would be meaningless as would all privacy rights of litigants.
8 Obviously, Defendant has failed to demonstrate even the relevance of the documents it
9 seeks in its subpoena to Bank of America, let alone shown any need (compelling or otherwise)
10 for the documents sufficient to overcome Plaintiff’s privacy right in those documents.
11 Defendant’s attempt to dredge up some validity for its subpoena to Bank of America does,
12 however, perfectly demonstrate Defendant’s punitive motivation in issuing its absurdly broad
13 subpoenas.
14 D. The Documents Sought in the Subpoenas Are Not Relevant Even to The Issues
15 Identified by Defendant.
16 In the course of Defendant’s rambling assertions of the relevance of the documents to
17 unspecified issues raised in this case, Defendant does actually identify two legal issues to which,
18 it asserts, the requested documents are relevant. However, even as to those issues, the vast
19 majority of the documents which Defendant seeks to obtain bear no relevance to the issues
20 Defendant identifies.
21 1. The Documents Sought Are Not Relevant to the Determination of Employment
22 Status.
23 The only other legal issue that Defendant actually identified as being relevant to the
24 documents sought is the determination of employment status under the common-law
25 employment test stated in S. G. Borello & Sons, Inc. v. Dep't of Indus. Relations, (1989) 48
26 Cal.3d 341 (“Borello”).
27 Defendant incorrectly (and without any citation to authority) asserts that the decision in
28 Dynamex Operations W., Inc. v. Superior Court, (2018) 4 Cal. 5th 903, (“Dynamex”) is not
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PLAINTIFF’S REPLY TO “AMENDED” OPPOSITION TO MOTION TO QUASH
1 2
applicable to the determination of employment status this case. However, even if resort is
2 made to Borello in determining whether employment relationships existed between Plaintiff and
3 Defendant, the documents sought by Defendant protected by the constitutional right of privacy
4 are not relevant to that determination.
5 In Borello, the California Supreme Court confirmed that the primary factor indicating the
6 presence of an employment relationship is the right of the imputed employer to control the
7 performance of the worker. Borello, supra, 48 Cal.3d at 350. However, the Court also
8 enumerated a number of secondary factors which could be considered in the absence of such a
9 right of control. Id. at 351. Applying those secondary factors, the Court found that an
10 employment relationship existed in that case despite the fact that the employer did not have the
11 right to control the employees’ performances. Id. at 360.
12 However, the factors stated in Borello are generally focused on the nature of, and details
13 of the work performed by the worker for the imputed employer, and they make no reference to
14 the details of any work performed by the worker for third parties. In attempting to justify its
15 subpoenas seeking Plaintiff’s financial and employment information for the past 15 years,
16 Defendant points to the factor stated in Borello: the “degree of permanence of the working
17 relationship” to suggest that the information sought is relevant because “one of the factors to
18 determine whether Plaintiff was an independent contractor is whether she was free to work for
19 other entities.” (Amended Opposition, P. 8, LL. 1-9) However, that factor is again focused on
20 Plaintiff’s employments with Defendant, i.e., whether in her working relationships with
21 Defendant permitted her to work for other employers. Obviously, the financial and other
22 employment details of those outside engagements have no bearing even on that factor. And in
23 fact, Plaintiff does not deny that, at the times she was employed by Defendant, she provided
24 modeling services to a number of other third parties. As such, that factor is not even in dispute.
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2 In Martinez v. Combes, (2010) 49 Cal. 4th 35, the case upon which the Dynamex decision expands, the
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California Supreme Court noted that its earlier decision in Borello was decided in the context of a claim for
27 worker’s compensation. Id. at 47.The Court held that in the context of a dispute regarding the duty to pay
wages, in order to determine the existence of an employment relationship, resort must be made to the three
28 alternative definitions for employment stated in the Wage Orders. Id. at 36. One of those three alternative
definitions of employment is the common-law definition, although the Court declined to decide whether the
common-law test applied in Borello was the common-law test to be applied in wage cases. Id. at 34, 47.
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PLAINTIFF’S REPLY TO “AMENDED” OPPOSITION TO MOTION TO QUASH
1 In a new argument not asserted in Defendant’s original Opposition, Defendant now
2 asserts that its insistence that Plaintiff’s “ knowledge of the modeling world, and her
3 relationships with other modeling agencies that paid her and/or provided her with wage
4 statements” (Amended Opposition, P. 10, LL. 10-11)) is relevant and justifies the subpoenas, is
5 based upon the Borello factor which examines “whether or not the parties believe they are
6 creating the relationship of employer-employee” Borello, supra, 48 Cal. 3d 35.
7 However, defendant is purposely distorting the meaning and purpose of that factor in
8 order to justify its intrusive subpoenas. The factor is clearly intended to examine the mutual
9 objective understanding of the parties, not each party’s private understanding. The question is
10 whether they had effectively agreed on the nature of the relationship. What would be the point
11 of examining the private, unexpressed understanding of each party. That construction of the
12 factor makes no sense. Clearly that factor is also focused on the interactions between the imputed
13 employer and the worker and not on other matters extrinsic to that relationship. Thus, that factor
14 likewise provides no relevance to the documents regarding Plaintiff’s other employments sought
15 in Defendant’s subpoenas.
16 2. The Issues Raised in Plaintiff’s PAGA Complaint Provide No Relevance Basis for
17 the Documents Sought in Defendant’s Subpoenas.
18 In another argument novel to its Amended Opposition, and as a final desperate attempt to
19 manufacture some relevance for its overreaching subpoenas, Defendant attempts to drag into this
20 matter the separate matter of Plaintiff’s PAGA complaint. Defendant notes that in her PAGA
21 complaint, Plaintiff alleges that Defendant controlled her hours, wages and working conditions,
22 and the hours, wages and working conditions of other models it employed. Defendant asserts
23 that it contends that in providing services to Defendant, Plaintiff was in fact controlled by her
24 talent agency, Look Models. Defendant then inexplicably concludes that those allegations
25 somehow render information regarding the possible control Plaintiff’s other talent agencies
26 operated over Plaintiff’s other employments with other employers relevant to Plaintiff’s claim
27 against Defendant.
28 ///
8
PLAINTIFF’S REPLY TO “AMENDED” OPPOSITION TO MOTION TO QUASH
1 Of course, Defendant fails to explain how or in what way information regarding talent
2 agencies and employments entirely unrelated to Plaintiff’s employments with Defendant could
3 possibly be relevant to Plaintiff’s PAGA claim, let alone to her claims in the present case.
4 III.
5 CONCLUSION
6 In opposing Plaintiff’s motion, Defendant has entirely failed to demonstrate any valid
7 relevance of the vast majority of the documents it seeks to any matter at issue in this case.
8 Certainly, Defendant has failed to establish any need, compelling or otherwise, for the
9 documents sought sufficient to outweigh Plaintiff’s privacy rights in the documents.
10 In the face of that irrelevance and failure to establish need, Plaintiff is entitled to maintain her
11 constitutional right of privacy in those documents, and as such, the subpoenas must be quashed.
12 Plaintiff, therefore, respectfully requests that the Court grant Plaintiff’s motions to quash
13 the deposition subpoenas.
14 OPPOSITION TO REQUEST FOR SANCTIONS
15 Defendant’s “amended” request for sanctions is based upon the assertion that Plaintiff’s
16 motion to quash the subpoenas is baseless and brought for the purpose of delaying the
17 proceedings. In its original Opposition, Defendant also sought sections for the supposed
18 untimeliness of Plaintiff’s motion. Defendant has apparently withdrawn that request.
19 As to Defendant’s assertion that Plaintiff’s motion is baseless, that assertion is belied by
20 Defendant’s inability to demonstrate the relevance of the vast majority of the documents
21 Defendant seeks by those subpoenas to any issue raised in this case. In fact, the feebleness of
22 Defendant’s futile attempts to articulate any relevance for the documents it has subpoenaed,
23 exposes the subpoenas themselves as an abuse of process, and demonstrates that the only basis of
24 those subpoenas is to punish Plaintiff for asserting her wage rights against Defendant. This
25 Court should, therefore, deny Defendant’s cynical request for sanctions.
26 ///
27 ///
28 ///
9
PLAINTIFF’S REPLY TO “AMENDED” OPPOSITION TO MOTION TO QUASH
1 DATED: August 21, 2020 THE LAW FIRM OF JOSEPH H. LOW IV
2
3 By:
4
JOSEPH H. LOW IV
Attorney for Plaintiff, WINONA POWERS
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PLAINTIFF’S REPLY TO “AMENDED” OPPOSITION TO MOTION TO QUASH
1 PROOF OF SERVICE
2
STATE OF CALIFORNIA )
3 )
COUNTY OF LOS ANGELES )
4
I am employed in the County of Los Angeles, State of California. I am over the age of 18
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years and not a party to this within action; my business address is 100 Oceangate, 12th Floor, Long
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Beach, CA 90802.
7 On August 21, 2020, I served the following documents described as:
8 1. PLAINTIFF’S REPLY TO DEFENDANT’S “AMENDED” OPPOSITION TO
9
MOTION FOR ORDER TO QUASH SUBPOENAS; OPPOSITION TO REQUEST
FOR SANCTIONS
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on the interested parties in this action by:
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[x] BY ELECTRONIC SERVICE: I caused the documents to be sent to the person at the
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electronic notification address listed below.
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Sheppard, Mullin, Richter & Hampton, LLP Sheppard, Mullin, Richter & Hampton, LLP
14 Douglas Yang Amanda Beckwith
Jason Kearnaghan Four Embarcadero Center, 17th Floor
15 333 S. Hope Street, 43rd Floor San Francisco, CA 94111
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Los Angeles, CA 90071 abeckwith@sheppardmullin.com
dyang@sheppardmullin.com
17 JKearnaghan@sheppardmullin.com
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[x] (STATE) I declare under penalty of perjury under the laws of the State of California that the
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above is true and correct.
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I declare under penalty of perjury under the laws of the State of California that the above is
21 true and correct. Executed on August 21, 2020, at Long Beach, California.
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24 Megan Tankersley
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PLAINTIFF’S REPLY TO “AMENDED” OPPOSITION TO MOTION TO QUASH
Preview
1 Joseph H. Low IV (SBN 194897) 2 THE LAW FIRM OF JOSEPH H. LOW IV 100 Oceangate, 12th Floor ELECTRONICALLY 3 Long Beach, CA 90802 F I L E D Telephone: (562) 901-0840 Superior Court of California, 4 County of San Francisco Facsimile: (562) 901-0841 5 08/21/2020 Roger Y. Muse (SBN 147120) Clerk of the Court BY: RONNIE OTERO 6 John R. Matheny (SBN 149532) Deputy Clerk EXCELSIOR LAW 7 9595 Wilshire Blvd., Suite 900 Beverly Hills, CA 90212 8 Telephone: (310) 205-3981 9 Facsimile: (310) 205-0594 10 Attorneys for Plaintiff, WINONA POWERS 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 IN AND FOR THE COUNTY OF SAN FRANCISCO 14 WINONA POWERS, an individual Case No.: CGC-19-581624 15 DISCOVERY Plaintiff, 16 vs. PLAINTIFF’S REPLY TO DEFENDANT’S “AMENDED” OPPOSITION TO MOTION 17 LEVI STRAUSS & CO., a Delaware Corp.; FOR ORDER TO QUASH SUBPOENAS; 18 and DOES 1-25, inclusive, OPPOSITION TO REQUEST FOR SANCTIONS 19 Defendants Date: August 28, 2020 20 Time: 9:00 a.m. 21 Dept: 302 22 23 Plaintiff, Winona Powers (Powers), respectfully submits this reply memorandum of 24 points and authorities in opposition to , defendants “amended” opposition to motion for order to 25 quash subpoenas and in opposition to defendant’s request for monetary sanctions against 26 plaintiff’s counsel in the amount of $1,000. 27 /// 28 /// 1 PLAINTIFF’S REPLY TO “AMENDED” OPPOSITION TO MOTION TO QUASH 1 I. 2 DEFENDANT WAS NOT ENTITLED TO FILE AN ADDITONAL OPPOSITION TO 3 PLAINTIFF’S MOTION AND AS SUCH, THE COURT SHOULD NOT CONSIDER ITS 4 ADDITIONAL ARGUMENTS. 5 Oddly, although Defendant had filed an opposition to Plaintiff’s Motion for Order to 6 Quash Subpoenas, and Plaintiff has filed a Reply to that Opposition, Defendants in the interim 7 during the continuance of the hearing on the Plaintiff’s Motion, Defendant filed an “Amended” 8 Opposition wherein Defendant makes additional arguments which it did not make in its 9 Opposition. There is no authority for Defendant’s filing of a second opposition to Plaintiff’s 10 Motion. Due to Defendant’s abuse of process Plaintiff has now had to file yet another reply in 11 order to address Defendant’s new arguments. The Court should not countenance Defendant’s 12 abuse of process and should not consider Defendant’s “Amended” Opposition. 13 Although Plaintiff objects to the Defendant’s filing of its Amended Opposition, Plaintiff 14 will again address the issued raised including Defendant’s new arguments in the event that the 15 Court considers Defendant’s Amended Opposition notwithstanding Defendant’s objection. 16 II. 17 DEFENDANT HAS FAILED TO MEET IT BURDEN OF SHOWING EVEN THE 18 RELEVANCE OF THE DOCUMENTS SOUGHT IN THE SUBPOENAS, LET ALONE 19 ANY NEED (“COMPELLING” OR OTHERWISE) FOR THE DOCUMENTS 20 SUFFICIENT TO OUTWEIGH PLAINTIFF’S PRIVACY RIGHT IN THOSE 21 DOCUMENTS. 22 A. The “Compelling Need” Standard for Overcoming Plaintiff’s Privacy Objections is 23 Applicable to the Information Sought by Defendant’s Subpoenas 24 Ironically, although Defendant accuses Plaintiff of misrepresenting the law regarding the 25 burden of proof Defendant must meet in order to overcome Plaintiff’s privacy objection, it is 26 Defendant that misrepresents the law. The California Supreme Court in its decision in Williams 27 v. Superior Court, (2017) 3 Cal. 5th 531, did not disapprove the “compelling interest” standard 28 applicable to information protected by the right of privacy; the Court merely indicated that the 2 PLAINTIFF’S REPLY TO “AMENDED” OPPOSITION TO MOTION TO QUASH 1 standard did not always apply in the face of every privacy objection. Rather, the Court held that 2 the level of the showing required is dependent upon the seriousness of the potential invasion of 3 the privacy interest occasioned by the challenged discovery. Id. 557. 4 On the contrary, the Court confirmed that permitting discovery of information protected 5 by the right of privacy on the basis of a showing of relevance under Code of Civil Procedure 6 section 2017.010 alone constitutes an abuse of discretion. Id. at 556. 7 In Williams, the private information at issue was the contact information of the 8 defendant’s employees who could potentially participate in the plaintiff’s PAGA claim based 9 upon the defendant’s Labor Code violations. Although the Court confirmed that employee- 10 contact information came within the privacy right, the Court held that in the context of the 11 employees’ potential participation in the PAGA action, the employee’s privacy interest was 12 limited and did not justify the satisfaction of the “compelling interest” standard in order to be 13 outweighed. Significantly for the present case, the Court contrasted the privacy interest there at 14 issue with matters where a stronger privacy interest has been recognized: 15 While less sensitive than one's medical history or financial data, "home contact information is generally considered private." 16 17 Id. at 554 (bolding added). 18 As is discussed in Plaintiff’s Memorandum supporting her motion, the courts have 19 recognized a very strong privacy interest in financial and employment information. (El Dorado 20 Sav. & Loan Ass'n v. Superior Court, (3rd Dist., 1987) 190 Cal. App. 3d 342; Moskowitz v. 21 Superior Court, (1982) 137 Cal. App. 3d 313, 316-317 (overruled on other grounds, Williams v. 22 Superior Court, (2017) 3 Cal. 5th 531, 557 fn 8.; Gordon v. Superior Court, (2nd Dist., 1997) 55 23 Cal. App. 4th 1546, 1557. ) The “compelling interest” standard unquestionably remains 24 applicable to Plaintiff’s financial information contained in the documents sought, and is 25 particularly appropriate here given the outrageously invasive scope of Defendant’s subpoenas. 1 26 1 27 Contrary to Defendant’s assertion, the Court in Williams did not “disapprove” the “compelling need” standard nor did it disapprove of the application of that standard by the court in Moskowitz. The Court 28 disapproved Moskovitz the other cases listed in its footnote 8 only to the extent that those decisions held that the “compelling need” standard was always applicable in the face of a privacy objection. Williams, 3 Cal. 5th at 557, fn 8. 3 PLAINTIFF’S REPLY TO “AMENDED” OPPOSITION TO MOTION TO QUASH 1 Although Defendant pretends that Plaintiff has not identified the documents sought by the 2 subpoenas as coming within the privacy privilege, Defendant itself confirms that the documents 3 sought will include Plaintiff’s tax return forms, payment information and employment 4 information. In fact, given the scope of the requests stated in the subpoenas (please see Matheny 5 Dec., Exhibits A-E, “Attachment 3” to each), to argue that the documents sought do not include 6 personal financial and employment information is to patently argue in bad faith. It is apparent 7 from the subpoenas themselves that the documents sought include all of Power’s employment 8 information for the past 15 years, including all of her employment income and tax 9 information for that period. 10 As is discussed below, far from having met its burden of showing a compelling need (or 11 indeed any need) sufficient to outweigh Plaintiff’s privacy interest, Defendant has failed to show 12 that the documents sought in its outrageously intrusive subpoenas are relevant even under Code 13 of Civil Procedure section 2017.010. 14 B. Plaintiff Has Not Waived Her Privacy Rights in Her Financial and Employment 15 Information. 16 In an attempt to evade Plaintiff’s privacy objections, Defendant argues that by filing her 17 claim for waiting-time penalties, Plaintiff has waived her privacy objections as to all of the 18 financial and employment information sought in the subpoenas. The case cited by Defendant in 19 support of its waiver assertion are all premised on the plaintiff’s placing of the otherwise private 20 information directly at issue in the litigation. Those cases are simply inapplicable to the present 21 case. 22 Defendant’s waiver assertion is patently absurd; so much so, that Defendant makes no 23 real attempt at explaining what in Plaintiff’s claim for penalties constituted a waiver of her 24 privacy rights in the information concerning her employments unrelated to her employments 25 with Defendant. In her claims against Defendant, Plaintiff seeks only penalties, the amount of 26 which, pursuant to Labor Code section 203, are solely a function of wage rate agreed to between 27 Defendant and Plaintiff’s talent agency for each employment, and the number of days by which 28 the payment was made after the wages for the employment came due (for a maximum of 30 4 PLAINTIFF’S REPLY TO “AMENDED” OPPOSITION TO MOTION TO QUASH 1 days). (Lab. Code § 203) Plaintiff does not seek damages of any kind against Defendant, and as 2 such, her income and earning capacity are in no way relevant to her claims. Thus, Plaintiff has 3 not placed her financial information unrelated to her employments with Defendant at issue. 4 Neither has she placed information regarding her employments with other employers at issue. 5 As such, she has not in any way made a general waiver of her privacy rights in her financial and 6 employment information. 7 As Defendant noted in its Amended Opposition, Plaintiff has no objections to the 8 production of financial and employment information directly related to her employments with 9 Defendant. Likewise, had Defendant limited its subpoena to Look Model Agency to documents 10 related to Plaintiff’s employments with Defendant, Plaintiff would not have objected to that 11 subpoena. However, it is unreasonable and unwarranted to extrapolate from that a general 12 waiver of Plaintiff’s financial and employment information unrelated to her employments with 13 Defendant. 14 C. Defendant’s Dredging for Evidence to Impugn Plaintiff’s Credibility Does Not 15 Outweigh Plaintiff’s Privacy Interest in the Information Sought in the Subpoenas. 16 In yet another vain attempt to establish some relevance for its subpoena to Bank of 17 America, Defendant asserts that “’[E]vidence bearing on a witness’ credibility is always 18 relevant.’” (Amended Opposition, P. 6, LL. 6-10) This, Defendant quotes from a practice guide 19 and cites as authority a federal trial court in New York. From that statement alone, Defendant 20 attempt to justify its subpoena to Bank of America seeking all of Plaintiff’s employment records 21 from 15 years of Plaintiff’s employment with Bank of America; an employment unrelated in any 22 way to her employments with Defendant and unrelated to her modeling work. Defendant 23 speculates that, in all those employment records, it might be able to dredge up some kind of dirt 24 with which it might impugn Plaintiff’s credibility “particularly in light of the fact that after 15 25 years with the bank, Plaintiff’s employment was suddenly terminated and, upon information and 26 belief, she has not found work outside of modeling since.” (Amended Opposition, P. 6, LL. 3-6) 27 Of course, Defendant does not bother to even attempt to identify an issue in this case for 28 which Plaintiff credibility may be called into question. Rather, Defendant believes that because 5 PLAINTIFF’S REPLY TO “AMENDED” OPPOSITION TO MOTION TO QUASH 1 “credibility is always relevant” it has an unlimited right to probe into any area of Plaintiff’s life, 2 even areas protected by Plaintiff’s right of privacy, in order to find something, anything, to 3 impugn Plaintiff’s credibility just in case her credibility comes into issue. 4 Obviously, if Defendant’s formulation of the law governing discovery were correct, since 5 “credibility is always at issue,” there would be no limitation on the scope of discovery 6 whatsoever; the limitations placed on the scope of discovery by Code of Civil Procedure section 7 2017.010 would be meaningless as would all privacy rights of litigants. 8 Obviously, Defendant has failed to demonstrate even the relevance of the documents it 9 seeks in its subpoena to Bank of America, let alone shown any need (compelling or otherwise) 10 for the documents sufficient to overcome Plaintiff’s privacy right in those documents. 11 Defendant’s attempt to dredge up some validity for its subpoena to Bank of America does, 12 however, perfectly demonstrate Defendant’s punitive motivation in issuing its absurdly broad 13 subpoenas. 14 D. The Documents Sought in the Subpoenas Are Not Relevant Even to The Issues 15 Identified by Defendant. 16 In the course of Defendant’s rambling assertions of the relevance of the documents to 17 unspecified issues raised in this case, Defendant does actually identify two legal issues to which, 18 it asserts, the requested documents are relevant. However, even as to those issues, the vast 19 majority of the documents which Defendant seeks to obtain bear no relevance to the issues 20 Defendant identifies. 21 1. The Documents Sought Are Not Relevant to the Determination of Employment 22 Status. 23 The only other legal issue that Defendant actually identified as being relevant to the 24 documents sought is the determination of employment status under the common-law 25 employment test stated in S. G. Borello & Sons, Inc. v. Dep't of Indus. Relations, (1989) 48 26 Cal.3d 341 (“Borello”). 27 Defendant incorrectly (and without any citation to authority) asserts that the decision in 28 Dynamex Operations W., Inc. v. Superior Court, (2018) 4 Cal. 5th 903, (“Dynamex”) is not 6 PLAINTIFF’S REPLY TO “AMENDED” OPPOSITION TO MOTION TO QUASH 1 2 applicable to the determination of employment status this case. However, even if resort is 2 made to Borello in determining whether employment relationships existed between Plaintiff and 3 Defendant, the documents sought by Defendant protected by the constitutional right of privacy 4 are not relevant to that determination. 5 In Borello, the California Supreme Court confirmed that the primary factor indicating the 6 presence of an employment relationship is the right of the imputed employer to control the 7 performance of the worker. Borello, supra, 48 Cal.3d at 350. However, the Court also 8 enumerated a number of secondary factors which could be considered in the absence of such a 9 right of control. Id. at 351. Applying those secondary factors, the Court found that an 10 employment relationship existed in that case despite the fact that the employer did not have the 11 right to control the employees’ performances. Id. at 360. 12 However, the factors stated in Borello are generally focused on the nature of, and details 13 of the work performed by the worker for the imputed employer, and they make no reference to 14 the details of any work performed by the worker for third parties. In attempting to justify its 15 subpoenas seeking Plaintiff’s financial and employment information for the past 15 years, 16 Defendant points to the factor stated in Borello: the “degree of permanence of the working 17 relationship” to suggest that the information sought is relevant because “one of the factors to 18 determine whether Plaintiff was an independent contractor is whether she was free to work for 19 other entities.” (Amended Opposition, P. 8, LL. 1-9) However, that factor is again focused on 20 Plaintiff’s employments with Defendant, i.e., whether in her working relationships with 21 Defendant permitted her to work for other employers. Obviously, the financial and other 22 employment details of those outside engagements have no bearing even on that factor. And in 23 fact, Plaintiff does not deny that, at the times she was employed by Defendant, she provided 24 modeling services to a number of other third parties. As such, that factor is not even in dispute. 25 2 In Martinez v. Combes, (2010) 49 Cal. 4th 35, the case upon which the Dynamex decision expands, the 26 California Supreme Court noted that its earlier decision in Borello was decided in the context of a claim for 27 worker’s compensation. Id. at 47.The Court held that in the context of a dispute regarding the duty to pay wages, in order to determine the existence of an employment relationship, resort must be made to the three 28 alternative definitions for employment stated in the Wage Orders. Id. at 36. One of those three alternative definitions of employment is the common-law definition, although the Court declined to decide whether the common-law test applied in Borello was the common-law test to be applied in wage cases. Id. at 34, 47. 7 PLAINTIFF’S REPLY TO “AMENDED” OPPOSITION TO MOTION TO QUASH 1 In a new argument not asserted in Defendant’s original Opposition, Defendant now 2 asserts that its insistence that Plaintiff’s “ knowledge of the modeling world, and her 3 relationships with other modeling agencies that paid her and/or provided her with wage 4 statements” (Amended Opposition, P. 10, LL. 10-11)) is relevant and justifies the subpoenas, is 5 based upon the Borello factor which examines “whether or not the parties believe they are 6 creating the relationship of employer-employee” Borello, supra, 48 Cal. 3d 35. 7 However, defendant is purposely distorting the meaning and purpose of that factor in 8 order to justify its intrusive subpoenas. The factor is clearly intended to examine the mutual 9 objective understanding of the parties, not each party’s private understanding. The question is 10 whether they had effectively agreed on the nature of the relationship. What would be the point 11 of examining the private, unexpressed understanding of each party. That construction of the 12 factor makes no sense. Clearly that factor is also focused on the interactions between the imputed 13 employer and the worker and not on other matters extrinsic to that relationship. Thus, that factor 14 likewise provides no relevance to the documents regarding Plaintiff’s other employments sought 15 in Defendant’s subpoenas. 16 2. The Issues Raised in Plaintiff’s PAGA Complaint Provide No Relevance Basis for 17 the Documents Sought in Defendant’s Subpoenas. 18 In another argument novel to its Amended Opposition, and as a final desperate attempt to 19 manufacture some relevance for its overreaching subpoenas, Defendant attempts to drag into this 20 matter the separate matter of Plaintiff’s PAGA complaint. Defendant notes that in her PAGA 21 complaint, Plaintiff alleges that Defendant controlled her hours, wages and working conditions, 22 and the hours, wages and working conditions of other models it employed. Defendant asserts 23 that it contends that in providing services to Defendant, Plaintiff was in fact controlled by her 24 talent agency, Look Models. Defendant then inexplicably concludes that those allegations 25 somehow render information regarding the possible control Plaintiff’s other talent agencies 26 operated over Plaintiff’s other employments with other employers relevant to Plaintiff’s claim 27 against Defendant. 28 /// 8 PLAINTIFF’S REPLY TO “AMENDED” OPPOSITION TO MOTION TO QUASH 1 Of course, Defendant fails to explain how or in what way information regarding talent 2 agencies and employments entirely unrelated to Plaintiff’s employments with Defendant could 3 possibly be relevant to Plaintiff’s PAGA claim, let alone to her claims in the present case. 4 III. 5 CONCLUSION 6 In opposing Plaintiff’s motion, Defendant has entirely failed to demonstrate any valid 7 relevance of the vast majority of the documents it seeks to any matter at issue in this case. 8 Certainly, Defendant has failed to establish any need, compelling or otherwise, for the 9 documents sought sufficient to outweigh Plaintiff’s privacy rights in the documents. 10 In the face of that irrelevance and failure to establish need, Plaintiff is entitled to maintain her 11 constitutional right of privacy in those documents, and as such, the subpoenas must be quashed. 12 Plaintiff, therefore, respectfully requests that the Court grant Plaintiff’s motions to quash 13 the deposition subpoenas. 14 OPPOSITION TO REQUEST FOR SANCTIONS 15 Defendant’s “amended” request for sanctions is based upon the assertion that Plaintiff’s 16 motion to quash the subpoenas is baseless and brought for the purpose of delaying the 17 proceedings. In its original Opposition, Defendant also sought sections for the supposed 18 untimeliness of Plaintiff’s motion. Defendant has apparently withdrawn that request. 19 As to Defendant’s assertion that Plaintiff’s motion is baseless, that assertion is belied by 20 Defendant’s inability to demonstrate the relevance of the vast majority of the documents 21 Defendant seeks by those subpoenas to any issue raised in this case. In fact, the feebleness of 22 Defendant’s futile attempts to articulate any relevance for the documents it has subpoenaed, 23 exposes the subpoenas themselves as an abuse of process, and demonstrates that the only basis of 24 those subpoenas is to punish Plaintiff for asserting her wage rights against Defendant. This 25 Court should, therefore, deny Defendant’s cynical request for sanctions. 26 /// 27 /// 28 /// 9 PLAINTIFF’S REPLY TO “AMENDED” OPPOSITION TO MOTION TO QUASH 1 DATED: August 21, 2020 THE LAW FIRM OF JOSEPH H. LOW IV 2 3 By: 4 JOSEPH H. LOW IV Attorney for Plaintiff, WINONA POWERS 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 PLAINTIFF’S REPLY TO “AMENDED” OPPOSITION TO MOTION TO QUASH 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA ) 3 ) COUNTY OF LOS ANGELES ) 4 I am employed in the County of Los Angeles, State of California. I am over the age of 18 5 years and not a party to this within action; my business address is 100 Oceangate, 12th Floor, Long 6 Beach, CA 90802. 7 On August 21, 2020, I served the following documents described as: 8 1. PLAINTIFF’S REPLY TO DEFENDANT’S “AMENDED” OPPOSITION TO 9 MOTION FOR ORDER TO QUASH SUBPOENAS; OPPOSITION TO REQUEST FOR SANCTIONS 10 on the interested parties in this action by: 11 [x] BY ELECTRONIC SERVICE: I caused the documents to be sent to the person at the 12 electronic notification address listed below. 13 Sheppard, Mullin, Richter & Hampton, LLP Sheppard, Mullin, Richter & Hampton, LLP 14 Douglas Yang Amanda Beckwith Jason Kearnaghan Four Embarcadero Center, 17th Floor 15 333 S. Hope Street, 43rd Floor San Francisco, CA 94111 16 Los Angeles, CA 90071 abeckwith@sheppardmullin.com dyang@sheppardmullin.com 17 JKearnaghan@sheppardmullin.com 18 [x] (STATE) I declare under penalty of perjury under the laws of the State of California that the 19 above is true and correct. 20 I declare under penalty of perjury under the laws of the State of California that the above is 21 true and correct. Executed on August 21, 2020, at Long Beach, California. 22 23 24 Megan Tankersley 25 26 27 28 11 PLAINTIFF’S REPLY TO “AMENDED” OPPOSITION TO MOTION TO QUASH