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
04/24/2020
Roger Y. Muse (SBN 147120) Clerk of the Court
BY: ERNALYN BURA
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
IN AND FOR THE COUNTY OF SAN FRANCISCO
13
14
WINONA POWERS, an individual Case No.: CGC-19-581624
DISCOVERY
15 Plaintiff, PLAINTIFF’S REPLY MEMORANDUM
vs.
16 OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR ORDER TO
LEVI STRAUSS & CO., a Delaware Corp.;
17 QUASH SUBPOENAS; AND OPPOSITION
and DOES 1-25, inclusive,
TO DEFENDANT’S REQUEST FOR
18
MONETARY SANCTIONS
Defendants
19
Date: May 4, 2020
20 Time: 9:00 a.m.
Dept: 302
21
22 Plaintiff, Winona Powers (Powers), respectfully submits this reply memorandum of
23 points and authorities in support of her motion to quash deposition subpoenas issued and served
24 on EXALT MODEL AND TALENT; LOOK MODEL AGENCY; CAST IMAGES MODEL &
25 TALENT AGENCY, LLC; MDT AGENCY INC., and BANK OF AMERICA, N.A., and in
26 opposition to defendant’s request for monetary sanctions against plaintiff’s counsel in the
27 amount of $1,000.
28 ///
1
PLAINTIFF’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER TO
QUASH SUBPOENAS; AND OPPOSITION TO DEFENDANT’S REQUEST FOR MONETARY SANCTIONS.
1 I.
2 PLAINTIFF’S MOTION WAS TIMELY FILED IN ACCORDANCE WITH THE
3 EXTENSION OF TIME DEFENDANT’S COUNSEL GRANTED PLAINTIFF TO
4 RESPOND TO THE SUBPOENAS.
5 Rather revealingly, Mr. Kearnaghan does not himself make a declaration denying that he
6 granted Plaintiff an extension of her time to reply to the deposition subpoenas, rather, Mr. Yang
7 simply states in his declaration that Plaintiff’s counsel made some “misrepresentations” in his
8 letter to the deponents. (Declaration of Douglas Yang (hereinafter, “Yang Dec.”), ¶ 6)
9 However, in Mr. Kearnaghan’s letter to Plaintiff’s counsel denying that he granted the
10 30-day extension as to the subpoenas, Mr. Kearnaghan attaches, as apparent support, Plaintiff’s
11 counsel’s email confirming Mr. Kearnaghan’s granting the extension as to all of Defendant’s
12 written discovery, including “Deposition Subpoenas for the Production of Business Records (5).”
13 (Yang Dec., ¶ 6; Exhibit D)
14 Additionally, prior to Mr. Kearnaghan’s letter of March 31, neither he nor any other
15 counsel for Defendant ever indicated that Mr. Matheny’s email inaccurately confirmed the
16 extension granted by Mr. Kearnaghan, as to the subpoenas despite the intervening exchange of
17 meet-and-confer communications (Matheny Dec., ¶ 8). Mr. Yang, of course, was not a party to
18 the telephone conversation between Mr. Matheny and Mr. Kearnaghan, yet he fails to explain the
19 basis of his assertion made under penalty of perjury, that Plaintiff’s counsel “falsely” stated to
20 the Subpoena recipients that “Plaintiff received from Defendant an additional 30 days to respond
21 to the subpoena.” (Yang Dec., ¶ 5.) Apparently, Mr. Yang also failed to read the confirming
22 email from Plaintiff’s counsel attached to Mr. Kearnaghan letter.
23 Mr. Kearnaghan may regret that he granted Plaintiff an extension to respond to the
24 subpoenas, but, as Mr. Matheny stated in both his declaration made in support of this motion,
25 and in his confirming email to Mr. Kearnaghan, the extension was granted. (Matheny Dec., ¶¶ 7,
26 8 Exhibits F, G) (Yang Dec., ¶ 6; Exhibit D)
27 Thus, Plaintiff’s motion was timely filed pursuant to the extension granted by Levi
28 Strauss & Company’s (“Defendant”) counsel.
2
PLAINTIFF’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER TO
QUASH SUBPOENAS; AND OPPOSITION TO DEFENDANT’S REQUEST FOR MONETARY SANCTIONS.
1 II.
2 DEFENDANT HAS FAILED TO SHOW ANY RELEVANCE OF THE PRIVACY-
3 PROTECTED DOCUMENTS TO ANY ISSUE PRESENTED IN THIS CASE.
4 A. “Credibility” Is not Alone a Sufficient Basis Upon Which to Obtain Documents
5 Protected by the Constitutional Right of Privacy.
6 In asserting that it is entitled to the documents sought by means of the subpoenas,
7 Defendant repeats, and repeats again, its bald assertion that the documents “are directly relevant
8 to the issues and defenses in this lawsuit.” (Defendant’ Opposition (hereinafter, “Opposition”),
9 P. 5, LL. 20-21) However, Defendant fails to even identify the legal issue to which the
10 documents are supposedly “directly relevant.” Rather, in attempting to justify its attempt to
11 obtain effectively all of Plaintiff’s financial and employment information for the past 15 years,
12 Defendant asserts that those records are relevant to Plaintiff’s “credibility” and her knowledge of
13 the modeling industry. (Opposition, P. 5, LL. 23-26) Of course, Defendant fails to explain in
14 what way Plaintiff’s knowledge of the workings of the modeling industry are in any way relevant
15 either to Plaintiff’s claims for statutory penalties or to any defenses Defendant might have to
16 those claims. Even Defendant’s assertion that Plaintiff’s credibility is at issues is
17 unaccompanied by any discussion of any issue at play in this case which calls Plaintiff’s
18 credibility into issue. Further, Defendant fails to explain how information regarding the details
19 of Plaintiff’s earnings and tax records would, in any case, be probative of Plaintiff’s knowledge
20 of the modeling industry.
21 Likewise, in attempting to justify its subpoena to Bank of America seeking to obtain the
22 entirety of Plaintiff’s employee file for 15 years of employment – an employment unrelated to
23 Plaintiff’s modeling work - Defendant again falls back onto “credibility” as an all-purpose
24 justification, again with no hint of the legal issue to which her credibility might be relevant.
25 Defendant apparently subscribes to the theory that “credibility” without any reference to
26 any legal or factual issue at play in the case nonetheless justifies expansive discovery into any
27 aspect of a litigant’s life in the hopes of finding possible dirty laundry, even those aspects of the
28 litigant’s life protected by the constitutional right of privacy. Unsurprisingly, Defendant has
3
PLAINTIFF’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER TO
QUASH SUBPOENAS; AND OPPOSITION TO DEFENDANT’S REQUEST FOR MONETARY SANCTIONS.
1 cited no authority for that contention. Of course, were Defendant’s contention to prevail, the
2 constitutional right of privacy in one’s financial and employment information would effectively
3 be rendered impotent, since, according to Defendant’s contention, “credibility” is always at issue
4 regardless of the nature of the issues presented in the case.
5 Flailing about for other justifications, Defendant also asserts that Plaintiff waived her
6 privacy right to her financial dealing by filing her complaint against Defendant. However, once
7 again, Defendant fails to explain how Plaintiff thereby, in any way, placed her financial and
8 employment dealings with third-party employers at issue in this case. Defendant cannot, in fact,
9 make such a showing. As Plaintiff explained in support of her motion, she does not seek
10 damages from Defendant, and the calculation of her wages due and penalties are purely a
11 function of her wage agreements with Defendant.
12 Simply put, Defendant has entirely failed to make any showing of any relevance
13 sufficient to justify the invasion of Plaintiff’s right of privacy in the documents sought.
14 B. 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 Fact That Some of The Documents Sought in The Subpoena to L.A. Models
22 Does Not Cure The Overbreadth Of That Subpoena Nor The Complete Irrelevance
23 Of The Documents Sought In The Other Subpoenas
24 In finally identifying the relevance of some of the documents to an actual legal issue at
25 play in this case, Defendant focuses solely upon the subpoena issued to L.A. Models. Defendant
26 asserts that the documents sought from L.A. Models are relevant because it was through L.A.
27 Models that Plaintiff obtained her jobs with Defendant. However, even that assertion of
28 relevance highlights the overbreadth of all of the subpoenas in requesting additional non-relevant
documents protected by Plaintiff’s constitutional right of privacy.
4
PLAINTIFF’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER TO
QUASH SUBPOENAS; AND OPPOSITION TO DEFENDANT’S REQUEST FOR MONETARY SANCTIONS.
1 In fact, the subpoenas to Plaintiff’s other former talent agencies and the subpoena to
2 Bank of America have no possible relevance to Plaintiff’s employments with Defendant, and as
3 such that relevance-justification in no way supports those subpoenas. Further, even as to the
4 subpoena to L.A. Models, the financial information regarding the employments L.A. Models
5 procured for Plaintiff with employers other than Defendant have no relevance to Plaintiff’s
6 claims against Defendant. As such, even that subpoena is unreasonably violative of Plaintiff’s
7 constitutional right of privacy.
8 In fact, had the subpoena to L.A. Models requested only documents related to Plaintiff’s
9 employment with Defendant, Plaintiff would not have objected to that subpoena. However, the
10 fact that some of the documents sought in the subpoena to L.A. Models would be relevant to the
11 issues presented in this case, does not justify Defendant’s unreasonable violation of Plaintiff’s
12 constitutional right of privacy by seeking the production of other financial and employment
13 records which bear no possible relevance to any issue raised in this case.
14 2. The Documents Sought Are Not Relevant to the Determination of Employment
15 Status.
16 The only other legal issue that Defendant actually identified as being relevant to the
17 documents sought is the determination of employment status under the common-law
18 employment test stated in S. G. Borello & Sons, Inc. v. Dep't of Indus. Relations, (1989) 48
19 Cal.3d 341 (“Borello”).
20 Defendant incorrectly (and without any citation to authority) asserts that the decision in
21 Dynamex Operations W., Inc. v. Superior Court, (2018) 4 Cal. 5th 903, (“Dynamex”) is not
1
22 applicable to the determination of employment status this case. However, even if resort is
23 made to Borello in determining whether employment relationships existed between Plaintiff and
24
25
26 1 In Martinez v. Combes, (2010) 49 Cal. 4th 35, the case upon which the Dynamex decision expands, the California
Supreme Court noted that its earlier decision in Borello was decided in the context of a claim for worker’s
27 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 alternative definitions for
28 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.
5
PLAINTIFF’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER TO
QUASH SUBPOENAS; AND OPPOSITION TO DEFENDANT’S REQUEST FOR MONETARY SANCTIONS.
1 Defendant, the documents sought by Defendant protected by the constitutional right of privacy
2 are not relevant to that determination.
3 In Borello, the California Supreme Court confirmed that the primary factor indicating the
4 presence of an employment relationship is the right of the imputed employer to control the
5 performance of the worker. Borello, supra, 48 Cal.3d at 350. However, the Court also
6 enumerated a number of secondary factors which could be considered in the absence of such a
7 right of control. Id. at 351. Applying those secondary factors, the Court found that an
8 employment relationship existed in that case despite the fact that the employer did not have the
9 right to control the employees’ performances. Id. at 360.
10 However, the factors stated in Borello are generally focused on the nature of, and details
11 of the work performed by the worker for the imputed employer, and they make no reference to
12 the details of any work performed by the worker for third parties. In attempting to justify its
13 subpoenas seeking Plaintiff’s financial and employment information for the past 15 years,
14 Defendant points to the factor stated in Borello: the “degree of permanence of the working
15 relationship” to suggest that the information sought is relevant because “one of the factors to
16 determine whether Plaintiff was an independent contractor is whether she was free to work for
17 other entities.” (Opposition, P. 8, LL. 1-9) However, that factor is again focused on Plaintiff’s
18 employments with Defendant, i.e., whether in her working relationships with Defendant
19 permitted her to work for other employers. Obviously, the financial and other employment
20 details of those outside engagements have no bearing even on that factor. And in fact, Plaintiff
21 does not deny that, at the times she was employed by Defendant, she provided modeling services
22 to a number of other third parties. As such, that factor is not even in dispute. The financial and
23 other details of those employments by third parties have no relevance to the Borello factor cited
24 by Defendant, nor, in fact, to any of the Borello factors.
25 III.
26 THE PAYMENT TRANSACTIONS IN PLAINTIFF’S EMPLOYMENTS WITH OTHER
27 ENTITIES HAVE NO RELEVANCE TO DEFENDANT’S DUTY TO TIMELY PAY
28 PLAINTIFF HER WAGES.
6
PLAINTIFF’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER TO
QUASH SUBPOENAS; AND OPPOSITION TO DEFENDANT’S REQUEST FOR MONETARY SANCTIONS.
1 Although Defendant does not actually make the argument, it is clear that Defendant
2 intends to argue that other entities who have hired Plaintiff for her modeling services may also
3 have failed to pay Plaintiff in accordance with Labor code section 201, and that evidence of
4 those payments is evidence of an industry practice. However, that justification has long been
5 rejected. In the case of Zaremba v. Miller, (1980) 113 Cal. App. 3d Supp. 1, the
6 defendant/photographer likewise argued that the practice in the modeling industry was to pay the
7 model only after the photographer had been paid by his or her client. Upon finding that the
8 model/plaintiff was the photographer’s employee for the single-day photography shoot, the court
9 rejected that argument holding:
10 The above-referred-to Labor Code provisions express a strong public policy for
prompt payment of laborers that may not be undercut by any industry habit or
11
custom to the contrary. Labor Code, section 219 provides, in part, "but no
12 provisions of this article [encompassing sections 200 through 240] can in any way
be contravened or set aside by private agreement, whether written, oral or
13 implied."
14 Id. at 5.
15 Thus, the court upheld the trial courts’ judgment against the defendant awarding waiting-
16 time penalties under Labor Code section 203.
17 Thus, how much, how, when and why Plaintiff was paid for her modeling series by other
18 employers is entirely irrelevant to Plaintiff’s claims against Defendant and likewise to any valid
19 defense Defendant may have.
20 IV.
21 CONCLUSION
22 In opposing Plaintiff’s motion, Defendant has entirely failed to demonstrate any valid
23 relevance of the vast majority of the documents it seeks to any matter at issue in this case.
24 In the face of that irrelevance, Plaintiff is entitled to maintain her constitutional right of privacy
25 in those documents, and as such, the subpoenas must be quashed.
26 Plaintiff, therefore, respectfully requests that the Court grant Plaintiff’s motions to quash
27 the deposition subpoenas.
28 ///
7
PLAINTIFF’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER TO
QUASH SUBPOENAS; AND OPPOSITION TO DEFENDANT’S REQUEST FOR MONETARY SANCTIONS.
1 OPPOSITION TO REQUEST FOR SANCTIONS
2 Defendant’s request for sanctions is based upon 1) the assertion that Plaintiff untimely
3 filed her motion in order to delay the proceedings, and 2) that Plaintiff’s motion to quash the
4 subpoenas is baseless.
5 However, Defendant’s assertion of untimeliness is belied not only by Plaintiff’s counsel’s
6 declaration stating that Defendant’s counsel granted Plaintiff a 30-day extension for her response
7 to the subpoenas and by Defendant’s counsel’s own declaration which attaches Plaintiff’s
8 counsel’s email confirming that extension. (Matheny Dec., ¶¶ 7, 8 Exhibits F, G) (Yang Dec., ¶
9 6; Exhibit D)
10 As to Defendant’s assertion that Plaintiff’s motion is baseless, that assertion is belied by
11 Defendant’s inability to demonstrate the relevance of the vast majority of the documents
12 Defendant seeks by those subpoenas to any issue raised in this case. In fact, the feebleness of
13 Defendant’s futile attempts to articulate any relevance for the documents it has subpoenaed,
14 exposes the subpoenas themselves as an abuse of process, and demonstrates that the only basis of
15 those subpoenas is to punish Plaintiff for asserting her wage rights against Defendant. This
16 Court should, therefore deny Defendant’s cynical request for sanctions.
17
18 DATED: April 24, 2020 THE LAW FIRM OF JOSEPH H. LOW IV
19
20 By:
JOSEPH H. LOW IV
21
Attorney for Plaintiff
22
23
24
25
26
27
28
8
PLAINTIFF’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER TO
QUASH SUBPOENAS; AND OPPOSITION TO DEFENDANT’S REQUEST FOR MONETARY SANCTIONS.
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 04/24/2020 Roger Y. Muse (SBN 147120) Clerk of the Court BY: ERNALYN BURA 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 IN AND FOR THE COUNTY OF SAN FRANCISCO 13 14 WINONA POWERS, an individual Case No.: CGC-19-581624 DISCOVERY 15 Plaintiff, PLAINTIFF’S REPLY MEMORANDUM vs. 16 OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER TO LEVI STRAUSS & CO., a Delaware Corp.; 17 QUASH SUBPOENAS; AND OPPOSITION and DOES 1-25, inclusive, TO DEFENDANT’S REQUEST FOR 18 MONETARY SANCTIONS Defendants 19 Date: May 4, 2020 20 Time: 9:00 a.m. Dept: 302 21 22 Plaintiff, Winona Powers (Powers), respectfully submits this reply memorandum of 23 points and authorities in support of her motion to quash deposition subpoenas issued and served 24 on EXALT MODEL AND TALENT; LOOK MODEL AGENCY; CAST IMAGES MODEL & 25 TALENT AGENCY, LLC; MDT AGENCY INC., and BANK OF AMERICA, N.A., and in 26 opposition to defendant’s request for monetary sanctions against plaintiff’s counsel in the 27 amount of $1,000. 28 /// 1 PLAINTIFF’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER TO QUASH SUBPOENAS; AND OPPOSITION TO DEFENDANT’S REQUEST FOR MONETARY SANCTIONS. 1 I. 2 PLAINTIFF’S MOTION WAS TIMELY FILED IN ACCORDANCE WITH THE 3 EXTENSION OF TIME DEFENDANT’S COUNSEL GRANTED PLAINTIFF TO 4 RESPOND TO THE SUBPOENAS. 5 Rather revealingly, Mr. Kearnaghan does not himself make a declaration denying that he 6 granted Plaintiff an extension of her time to reply to the deposition subpoenas, rather, Mr. Yang 7 simply states in his declaration that Plaintiff’s counsel made some “misrepresentations” in his 8 letter to the deponents. (Declaration of Douglas Yang (hereinafter, “Yang Dec.”), ¶ 6) 9 However, in Mr. Kearnaghan’s letter to Plaintiff’s counsel denying that he granted the 10 30-day extension as to the subpoenas, Mr. Kearnaghan attaches, as apparent support, Plaintiff’s 11 counsel’s email confirming Mr. Kearnaghan’s granting the extension as to all of Defendant’s 12 written discovery, including “Deposition Subpoenas for the Production of Business Records (5).” 13 (Yang Dec., ¶ 6; Exhibit D) 14 Additionally, prior to Mr. Kearnaghan’s letter of March 31, neither he nor any other 15 counsel for Defendant ever indicated that Mr. Matheny’s email inaccurately confirmed the 16 extension granted by Mr. Kearnaghan, as to the subpoenas despite the intervening exchange of 17 meet-and-confer communications (Matheny Dec., ¶ 8). Mr. Yang, of course, was not a party to 18 the telephone conversation between Mr. Matheny and Mr. Kearnaghan, yet he fails to explain the 19 basis of his assertion made under penalty of perjury, that Plaintiff’s counsel “falsely” stated to 20 the Subpoena recipients that “Plaintiff received from Defendant an additional 30 days to respond 21 to the subpoena.” (Yang Dec., ¶ 5.) Apparently, Mr. Yang also failed to read the confirming 22 email from Plaintiff’s counsel attached to Mr. Kearnaghan letter. 23 Mr. Kearnaghan may regret that he granted Plaintiff an extension to respond to the 24 subpoenas, but, as Mr. Matheny stated in both his declaration made in support of this motion, 25 and in his confirming email to Mr. Kearnaghan, the extension was granted. (Matheny Dec., ¶¶ 7, 26 8 Exhibits F, G) (Yang Dec., ¶ 6; Exhibit D) 27 Thus, Plaintiff’s motion was timely filed pursuant to the extension granted by Levi 28 Strauss & Company’s (“Defendant”) counsel. 2 PLAINTIFF’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER TO QUASH SUBPOENAS; AND OPPOSITION TO DEFENDANT’S REQUEST FOR MONETARY SANCTIONS. 1 II. 2 DEFENDANT HAS FAILED TO SHOW ANY RELEVANCE OF THE PRIVACY- 3 PROTECTED DOCUMENTS TO ANY ISSUE PRESENTED IN THIS CASE. 4 A. “Credibility” Is not Alone a Sufficient Basis Upon Which to Obtain Documents 5 Protected by the Constitutional Right of Privacy. 6 In asserting that it is entitled to the documents sought by means of the subpoenas, 7 Defendant repeats, and repeats again, its bald assertion that the documents “are directly relevant 8 to the issues and defenses in this lawsuit.” (Defendant’ Opposition (hereinafter, “Opposition”), 9 P. 5, LL. 20-21) However, Defendant fails to even identify the legal issue to which the 10 documents are supposedly “directly relevant.” Rather, in attempting to justify its attempt to 11 obtain effectively all of Plaintiff’s financial and employment information for the past 15 years, 12 Defendant asserts that those records are relevant to Plaintiff’s “credibility” and her knowledge of 13 the modeling industry. (Opposition, P. 5, LL. 23-26) Of course, Defendant fails to explain in 14 what way Plaintiff’s knowledge of the workings of the modeling industry are in any way relevant 15 either to Plaintiff’s claims for statutory penalties or to any defenses Defendant might have to 16 those claims. Even Defendant’s assertion that Plaintiff’s credibility is at issues is 17 unaccompanied by any discussion of any issue at play in this case which calls Plaintiff’s 18 credibility into issue. Further, Defendant fails to explain how information regarding the details 19 of Plaintiff’s earnings and tax records would, in any case, be probative of Plaintiff’s knowledge 20 of the modeling industry. 21 Likewise, in attempting to justify its subpoena to Bank of America seeking to obtain the 22 entirety of Plaintiff’s employee file for 15 years of employment – an employment unrelated to 23 Plaintiff’s modeling work - Defendant again falls back onto “credibility” as an all-purpose 24 justification, again with no hint of the legal issue to which her credibility might be relevant. 25 Defendant apparently subscribes to the theory that “credibility” without any reference to 26 any legal or factual issue at play in the case nonetheless justifies expansive discovery into any 27 aspect of a litigant’s life in the hopes of finding possible dirty laundry, even those aspects of the 28 litigant’s life protected by the constitutional right of privacy. Unsurprisingly, Defendant has 3 PLAINTIFF’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER TO QUASH SUBPOENAS; AND OPPOSITION TO DEFENDANT’S REQUEST FOR MONETARY SANCTIONS. 1 cited no authority for that contention. Of course, were Defendant’s contention to prevail, the 2 constitutional right of privacy in one’s financial and employment information would effectively 3 be rendered impotent, since, according to Defendant’s contention, “credibility” is always at issue 4 regardless of the nature of the issues presented in the case. 5 Flailing about for other justifications, Defendant also asserts that Plaintiff waived her 6 privacy right to her financial dealing by filing her complaint against Defendant. However, once 7 again, Defendant fails to explain how Plaintiff thereby, in any way, placed her financial and 8 employment dealings with third-party employers at issue in this case. Defendant cannot, in fact, 9 make such a showing. As Plaintiff explained in support of her motion, she does not seek 10 damages from Defendant, and the calculation of her wages due and penalties are purely a 11 function of her wage agreements with Defendant. 12 Simply put, Defendant has entirely failed to make any showing of any relevance 13 sufficient to justify the invasion of Plaintiff’s right of privacy in the documents sought. 14 B. 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 Fact That Some of The Documents Sought in The Subpoena to L.A. Models 22 Does Not Cure The Overbreadth Of That Subpoena Nor The Complete Irrelevance 23 Of The Documents Sought In The Other Subpoenas 24 In finally identifying the relevance of some of the documents to an actual legal issue at 25 play in this case, Defendant focuses solely upon the subpoena issued to L.A. Models. Defendant 26 asserts that the documents sought from L.A. Models are relevant because it was through L.A. 27 Models that Plaintiff obtained her jobs with Defendant. However, even that assertion of 28 relevance highlights the overbreadth of all of the subpoenas in requesting additional non-relevant documents protected by Plaintiff’s constitutional right of privacy. 4 PLAINTIFF’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER TO QUASH SUBPOENAS; AND OPPOSITION TO DEFENDANT’S REQUEST FOR MONETARY SANCTIONS. 1 In fact, the subpoenas to Plaintiff’s other former talent agencies and the subpoena to 2 Bank of America have no possible relevance to Plaintiff’s employments with Defendant, and as 3 such that relevance-justification in no way supports those subpoenas. Further, even as to the 4 subpoena to L.A. Models, the financial information regarding the employments L.A. Models 5 procured for Plaintiff with employers other than Defendant have no relevance to Plaintiff’s 6 claims against Defendant. As such, even that subpoena is unreasonably violative of Plaintiff’s 7 constitutional right of privacy. 8 In fact, had the subpoena to L.A. Models requested only documents related to Plaintiff’s 9 employment with Defendant, Plaintiff would not have objected to that subpoena. However, the 10 fact that some of the documents sought in the subpoena to L.A. Models would be relevant to the 11 issues presented in this case, does not justify Defendant’s unreasonable violation of Plaintiff’s 12 constitutional right of privacy by seeking the production of other financial and employment 13 records which bear no possible relevance to any issue raised in this case. 14 2. The Documents Sought Are Not Relevant to the Determination of Employment 15 Status. 16 The only other legal issue that Defendant actually identified as being relevant to the 17 documents sought is the determination of employment status under the common-law 18 employment test stated in S. G. Borello & Sons, Inc. v. Dep't of Indus. Relations, (1989) 48 19 Cal.3d 341 (“Borello”). 20 Defendant incorrectly (and without any citation to authority) asserts that the decision in 21 Dynamex Operations W., Inc. v. Superior Court, (2018) 4 Cal. 5th 903, (“Dynamex”) is not 1 22 applicable to the determination of employment status this case. However, even if resort is 23 made to Borello in determining whether employment relationships existed between Plaintiff and 24 25 26 1 In Martinez v. Combes, (2010) 49 Cal. 4th 35, the case upon which the Dynamex decision expands, the California Supreme Court noted that its earlier decision in Borello was decided in the context of a claim for worker’s 27 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 alternative definitions for 28 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. 5 PLAINTIFF’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER TO QUASH SUBPOENAS; AND OPPOSITION TO DEFENDANT’S REQUEST FOR MONETARY SANCTIONS. 1 Defendant, the documents sought by Defendant protected by the constitutional right of privacy 2 are not relevant to that determination. 3 In Borello, the California Supreme Court confirmed that the primary factor indicating the 4 presence of an employment relationship is the right of the imputed employer to control the 5 performance of the worker. Borello, supra, 48 Cal.3d at 350. However, the Court also 6 enumerated a number of secondary factors which could be considered in the absence of such a 7 right of control. Id. at 351. Applying those secondary factors, the Court found that an 8 employment relationship existed in that case despite the fact that the employer did not have the 9 right to control the employees’ performances. Id. at 360. 10 However, the factors stated in Borello are generally focused on the nature of, and details 11 of the work performed by the worker for the imputed employer, and they make no reference to 12 the details of any work performed by the worker for third parties. In attempting to justify its 13 subpoenas seeking Plaintiff’s financial and employment information for the past 15 years, 14 Defendant points to the factor stated in Borello: the “degree of permanence of the working 15 relationship” to suggest that the information sought is relevant because “one of the factors to 16 determine whether Plaintiff was an independent contractor is whether she was free to work for 17 other entities.” (Opposition, P. 8, LL. 1-9) However, that factor is again focused on Plaintiff’s 18 employments with Defendant, i.e., whether in her working relationships with Defendant 19 permitted her to work for other employers. Obviously, the financial and other employment 20 details of those outside engagements have no bearing even on that factor. And in fact, Plaintiff 21 does not deny that, at the times she was employed by Defendant, she provided modeling services 22 to a number of other third parties. As such, that factor is not even in dispute. The financial and 23 other details of those employments by third parties have no relevance to the Borello factor cited 24 by Defendant, nor, in fact, to any of the Borello factors. 25 III. 26 THE PAYMENT TRANSACTIONS IN PLAINTIFF’S EMPLOYMENTS WITH OTHER 27 ENTITIES HAVE NO RELEVANCE TO DEFENDANT’S DUTY TO TIMELY PAY 28 PLAINTIFF HER WAGES. 6 PLAINTIFF’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER TO QUASH SUBPOENAS; AND OPPOSITION TO DEFENDANT’S REQUEST FOR MONETARY SANCTIONS. 1 Although Defendant does not actually make the argument, it is clear that Defendant 2 intends to argue that other entities who have hired Plaintiff for her modeling services may also 3 have failed to pay Plaintiff in accordance with Labor code section 201, and that evidence of 4 those payments is evidence of an industry practice. However, that justification has long been 5 rejected. In the case of Zaremba v. Miller, (1980) 113 Cal. App. 3d Supp. 1, the 6 defendant/photographer likewise argued that the practice in the modeling industry was to pay the 7 model only after the photographer had been paid by his or her client. Upon finding that the 8 model/plaintiff was the photographer’s employee for the single-day photography shoot, the court 9 rejected that argument holding: 10 The above-referred-to Labor Code provisions express a strong public policy for prompt payment of laborers that may not be undercut by any industry habit or 11 custom to the contrary. Labor Code, section 219 provides, in part, "but no 12 provisions of this article [encompassing sections 200 through 240] can in any way be contravened or set aside by private agreement, whether written, oral or 13 implied." 14 Id. at 5. 15 Thus, the court upheld the trial courts’ judgment against the defendant awarding waiting- 16 time penalties under Labor Code section 203. 17 Thus, how much, how, when and why Plaintiff was paid for her modeling series by other 18 employers is entirely irrelevant to Plaintiff’s claims against Defendant and likewise to any valid 19 defense Defendant may have. 20 IV. 21 CONCLUSION 22 In opposing Plaintiff’s motion, Defendant has entirely failed to demonstrate any valid 23 relevance of the vast majority of the documents it seeks to any matter at issue in this case. 24 In the face of that irrelevance, Plaintiff is entitled to maintain her constitutional right of privacy 25 in those documents, and as such, the subpoenas must be quashed. 26 Plaintiff, therefore, respectfully requests that the Court grant Plaintiff’s motions to quash 27 the deposition subpoenas. 28 /// 7 PLAINTIFF’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER TO QUASH SUBPOENAS; AND OPPOSITION TO DEFENDANT’S REQUEST FOR MONETARY SANCTIONS. 1 OPPOSITION TO REQUEST FOR SANCTIONS 2 Defendant’s request for sanctions is based upon 1) the assertion that Plaintiff untimely 3 filed her motion in order to delay the proceedings, and 2) that Plaintiff’s motion to quash the 4 subpoenas is baseless. 5 However, Defendant’s assertion of untimeliness is belied not only by Plaintiff’s counsel’s 6 declaration stating that Defendant’s counsel granted Plaintiff a 30-day extension for her response 7 to the subpoenas and by Defendant’s counsel’s own declaration which attaches Plaintiff’s 8 counsel’s email confirming that extension. (Matheny Dec., ¶¶ 7, 8 Exhibits F, G) (Yang Dec., ¶ 9 6; Exhibit D) 10 As to Defendant’s assertion that Plaintiff’s motion is baseless, that assertion is belied by 11 Defendant’s inability to demonstrate the relevance of the vast majority of the documents 12 Defendant seeks by those subpoenas to any issue raised in this case. In fact, the feebleness of 13 Defendant’s futile attempts to articulate any relevance for the documents it has subpoenaed, 14 exposes the subpoenas themselves as an abuse of process, and demonstrates that the only basis of 15 those subpoenas is to punish Plaintiff for asserting her wage rights against Defendant. This 16 Court should, therefore deny Defendant’s cynical request for sanctions. 17 18 DATED: April 24, 2020 THE LAW FIRM OF JOSEPH H. LOW IV 19 20 By: JOSEPH H. LOW IV 21 Attorney for Plaintiff 22 23 24 25 26 27 28 8 PLAINTIFF’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER TO QUASH SUBPOENAS; AND OPPOSITION TO DEFENDANT’S REQUEST FOR MONETARY SANCTIONS.