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Randal M. Barnum State Bar No. 111287
Jenna R. Avila State Bar No. 307639
LAW OFFICES OF RANDAL M. BARNUM
279 East H Street
Benicia, CA 94510
Telephone: 707.745.3747
Facsimile: 707.745.4580
rbarnum@rmblaw.com
jnunes@rmblaw.com
Attorneys for Defendant/Cross-Complainant MYLES
HOKAMA
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA BARBARA
10
(UNLIMITED JURISDICTION)
11
STEVEN G. JOHNSON DENTAL CASE NO. 23CV00884
12
CORPORATION,
DISCOVERY
4 Plaintiff,
13
SEPARATE STATEMENT OF DISCOVERY
14 v.
IN DISPUTE IN SUPPORT OF
MYLES HOKAMA, DEFENDANT/CROSS-COMPLAINANT’S
15 MOTION TO QUASH SUBPOENAS [CCP §
16
Defendant. 1987.1]
Hearing Date: April 23, 2024
17
Time: 8:30 a.m.
18 Dept: 2
Judge: Hon. James F. Rigali
19
20 Complaint Filed: March 2, 2023
Cross-Complaint Filed: June 15, 2023
21
22 MYLES HOKAMA,
23 Cross-Complainant,
24 Vv.
STEVEN G. JOHNSON DENTAL
25
CORPORATION; and Roes 1 through 10,
Inclusive,
26
Cross-Defendants.
27
28
“T+
SEPARATE STATEMENT OF DISCOVERY IN DISPUTE IN SUPPORT OF DEFENDANT/CROSS-
COMPLAINANT’S MOTION TO QUASH SUBPOENAS
1 COMES NOW Defendant/Cross-Complainant MYLES HOKAMA (hereinafter “Cross-
2}} Complainant”), and in support of his motion to quash subpoenas, files the following Separate
3 Statement of Discovery in Dispute:
4 CROSS-DEFENDANT’S SUBPOENAS FROM SMILELAND DENTAL AND
5 WESTERN DENTAL SERVICES, INC.
6 On February 2, 2024, Plaintiff/Cross-Defendant STEVEN G. JOHNSON DENTAL
7||CORPORATION (hereinafter “Cross-Defendant’”) issued subpoenas for Cross-Complainant’s
8 |/employment records from Smileland Dental and Western Dental Services, Inc. for production of
9||documents at a deposition to occur on February 26, 2024. The documents requested by each
10}|subpoena are identical and are substantially identical as follows:
ll YOU are required to produce any and all documents in YOUR
possession or custody or otherwise under your control that pertain
12 to any application of employment by or work performed by
Defendant and Cross-Complainant Myles Mitsuo Hokama (aka
13 Myles D. Hokama, Myles Hokama, DDS, Dr. Myles Hokama),
whose Social Security Number is xxx-xx-7629, and whose date of
14 birth is September 14, 1953.
15 The Smileland Dental subpoena requests documents for the period of January 2019
16||through the present. The Western Dental Services, Inc. subpoena requests documents for the
17||period of January 2008 to the present.
18 Cross-Defendant’s subpoenas also included the following DEFINITIONS and
19 DOCUMENTS TO BE PRODUCED:
20 I. DEFINITIONS.
21 1. The terms “DR. HOKAMA” as used herein, means and refers to
Defendant and Cross-Complainant Myles Mitsuo Hokama (aka
22 Myles D. Hokama, Myles Hokama, D.D.S., Dr. Myles Hokama).
23 2. The words “YOU” and “YOUR,” as used herein, means and
refers to the custodian of records for the company or entity, and/or
24 any affiliates, associates or subsidiaries thereof, to which the
accompanying deposition subpoena is directed. [The Western
25 Dental Services, Inc. subpoena includes (a) Western Dental
Service, Inc., (b) Access Dental Centers; and (c) Cherag Dinshaw
26 Sarkari D.D.S. (Subsidiary of Guardian Insurance Co. dba Access
Dental Services.]
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SEPARATE STATEMENT OF DISCOVERY IN DISPUTE IN SUPPORT OF DEFENDANT/CROSS-
COMPLAINANT'S MOTION TO QUASH SUBPOENAS.
3. The terms “DOCUMENT” and/or “DOCUMENTS” as _used
herein is synonymous with the term “document” and/or “writing”
in California Evidence Code § 250 and includes any written,
recorded, electronically generated, filmed, or graphic matter,
whether produced or reproduced on papers, cards, tapes, film,
facsimile, computer storage device or any other media, and
includes, but is not limited to, memoranda, notes, electronic
communications, electronic documents, e-mails, minutes, records,
insurance applications, insurance election and/or claim forms,
reports, photographs, diagnoses, medical tests and test results,
correspondence, telegrams, telexes, diaries, bookkeeping entries,
financial statements, checks, check stubs, reports, studies, charts,
graphs, statements, notebooks, handwritten notes, applications,
agreements, books, pamphlets, periodicals, leaflets, appointments
calendars, work papers, and notes, records and recordings of oral
communications, and also includes, but is not limited to, originals
and all copies which are different in any way from the original,
whether by interlineation, receipt stamp, notation, indication of
10 copies sent or received, or otherwise, and drafts.
ll Il. DOCUMENTS TO BE PRODUCED.
12 1, Any and all personnel files or any other file maintained by YOU
regarding DR. HOKAMA for the entire time period of his
2
13 employment with YOUR company or entity [from January 2008 to
the present for Western Dental Services, Inc. and from January
14 2019 to the present for Smileland Dental].
15 2. All DOCUMENTS in YOUR possession, custody or control that
reflect, discuss, mention, comment upon or otherwise refer to the
16 employment application, agreement, contract, and/or agreements
by and/or between YOU and DR. HOKAMA [from January 2008
17 to the present for Western Dental Services, Inc. and from January
2019 to the present for Smileland Dental] to the present regarding
18 employment or services rendered or to be rendered by DR.
HOKAMA.
19
3. All DOCUMENTS in YOUR possession, custody or control that
20 reflect, discuss, mention, comment upon or otherwise refer to DR.
HOKAMA’s job titles, duties and/or requirements, positions held,
21 job promotions or demotions, applications for changes in job title
and/or status, and/or changes in job title and/or status and/or pay
22 increases or decreases during DR. HOKAMA’s employment with
YOU [from January 2008 to the present for Western Dental
23 Services, Inc. and from January 2019 to the present for Smileland
Dental].
24
4. All DOCUMENTS in YOUR possession, custody or control that
25 reflect, discuss, mention, comment upon or otherwise refer to DR.
HOKAMA’s compensation and benefits, including tax records,
26 and pay stubs and/or payroll records, for any period during DR.
HOKAMA’s employment with YOU [from January 2008 to the
27 present for Western Dental Services, Inc. and from January 2019 to
the present for Smileland Dental].
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SEPARATE STATEMENT OF DISCOVERY IN DISPUTE IN SUPPORT OF DEFENDANT/CROSS-
COMPLAINANT’S MOTION TO QUASH SUBPOENAS
5, All DOCUMENTS in YOUR possession, custody or control that
reflect, discuss, mention, comment upon or otherwise refer to any
oral or written complaints, and/or claims (either formal or
informal) made by anyone (including but not limited to staff and
patients), about DR. HOKAMA [from January 2008 to the present
for Western Dental Services, Inc. and from January 2019 to the
present for Smileland Dental].
6. All DOCUMENTS in your possession, custody or control that
reflect, discuss, mention, comment upon or otherwise refer to any
disciplinary write ups or counseling forms, written or verbal
warnings, demotions, reductions in compensation, and/or behavior
or work performance issues regarding DR. HOKAMA while
employed by YOU [from January 2008 to the present for Western
Dental Services, Inc. and from January 2019 to the present for
Smileland Dental].
CROSS-COMPLAINANT’S _ OBJECTIONS _ AND__ SUPPORTING _ LEGAL
10 AUTHORITY __IN OPPOSITION TO SUBPOENAS FOR EMPLOYMENT
RECORDS FROM SMILELAND DENTAL AND WESTERN DENTAL
11 SERVICES, INC.
12 A This Court Has the Authority to Quash and/or Issue_a Protective Orde
Limiting the Scope of Deposition Subpoenas.
13
14 California’s Code of Civil Procedure affords parties and non-parties protection against
15 defective subpoenas. Specifically, Code of Civil Procedure section 1987.1 provides that the
16 court, upon a motion “reasonably made” by any party, “may make an order quashing the
17 subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions
18 as the court shall declare, including protective orders. In addition, the court may make any other
19 order as may be appropriate to protect the person from unreasonable or oppressive demands,
20 including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc.
21 §1987.1(a).)
22 “Although the scope of civil discovery is broad, it is not limitless.” (Calcor Space
23 Facility, Inc. v. Superior Court (1997) 53 Cal.App.4" 216, 223 (“Calcor Space Facility”).) A
24 subpoena that seeks information that is privileged, protected, or irrelevant may be quashed.
25 (Code Civ. Proc. §2017.010.) Additionally, a court may issue a protective order limiting the
26 scope of discovery “if it determines that the burden, expense or intrusiveness of the discovery
27 clearly outweighs the likelihood that the information will lead to the discovery of admissible
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SEPARATE STATEMENT OF DISCOVERY IN DISPUTE IN SUPPORT OF DEFENDANT/CROSS-
COMPLAINANT’S MOTION TO QUASH SUBPOENAS
evidence.” (Code Civ. Proc. §2017.020.) The more sensitive the information sought in the
subpoena, the greater the need for the discovery must be shown. (Hoffinan Corp. v. Superior
Court (1085) 172 Cal.App.3d 357, 362.) The party seeking discovery must show a particularized
need for the confidential information sought. The broad “relevancy to the subject matter”
standard is not enough. The court must be convinced that the information is directly relevant to a
cause of action or defense, i.e., that it is essential to determining the truth of the matters in
dispute. (Britt v. Superior Court (1978) 20 Cal.3d 844, 856 (“Britt’).)
Further, in the context of non-party discovery subpoenas, the courts have determined that
requests that are not likely to lead to relevant or admissible evidence, not specified with
10 reasonable particularity, and require overly burdensome searches by non-parties are not
lI reasonable. (Calcor Space Facility, supra, 53 Cal.App.4" at p. 221.)
12 As set forth herein, an order quashing Cross-Defendant’s overly broad and intrusive
13 subpoenas is appropriate.
14 B The Document Request In The Subpoenas Is Vague And Overbroad
15 Under California law, a subpoena must describe the documents to be produced with
16 reasonable particularity. (Calcor Space Facility, supra, 53 Cal.App.4" at p. 218; see Code Civ.
17 Proc. §2025.220(a)(4) (providing that a deposition notice shall state the “specification with
18 reasonable particularity of any materials or category of materials to be produced by the
19 deponent.”) “When discovery requests are grossly overbroad on their face, and hence do not
20 appear reasonably related to a legitimate discovery need, a reasonable inference can be drawn of
21 an intent to harass and improperly burden.” (Obregon v. Superior Court (1998) 67 Cal.App.4"
22 424, 431 “Obregon”).)
23 The court’s decision in Calcor Space Facility is directly on point. In that case, the
24 plaintiff issued a subpoena to a nonparty that included a twelve-page document request
25 purporting to be detailed by was interpreted by the court to essentially consist of a “single
26 sentence: Produce everything in your possession which in any way relates to gun mounts.” (53
27 Cal.App.4" at p. 222.) The appellate court held that this request was insufficiently detailed and
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SEPARATE STATEMENT
OF DISCOVERY IN DISPUTE IN SUPPORT OF DEFENDANT/CROSS-
COMPLAINANT’S MOTION TO QUASH SUBPOENAS.
issued a writ of mandate directing the trial court to vacate orders compelling the nonparty to
produce the requested materials, because the subpoena described “generalized broad categories
of materials rather than specific documents, or at least, categories of documents or materials
which are reasonably particularized.” (/d. at p. 219.)
Here, Cross-Defendant does the same thing as did the plaintiffs in Calcor Space Facility.
Cross-Defendant’s subpoenas seek a laundry list of items that essentially seek everything in the
deponents’ possession which in any way relates to Cross-Complainant. As demonstrated by
Calcor Space Facility, Cross-Defendant’s document requests are insufficiently detailed, vague,
and overbroad. This Court, therefore. can draw the reasonable inference that Cross-Defendant,
10 by issuing subpoenas for all of Cross-Complainant’s employment records, intends to harass and
11 improperly burden the nonparties to whom the subpoenas are directed. (See, Obregon, supra, 67
12 Cal.App.4" at p. 431.) Accordingly, this Court should quash the subpoenas.
a
13 Cc. The Subpoenas Seek Information That Is Not Relevant Nor Reasonably
Calculated To Lead To The Discovery Of Admissible Evidence
14
15 “Although the scope of civil discovery is broad, it is not limitless.” (Calcor Space
16 Facility, supra, 53 Cal.App.4" at p. 223.) Parties may conduct discovery only of matters that are
17 relevant or are reasonably calculated to lead to the discovery of admissible evidence. (Code Civ.
18 Proc. §2017.010.) “The burden rests upon the party seeking the discovery to provide evidence
19 from which the court may determine these conditions are met. (Calcor Space Facility, supra, 53
20 Cal.App.4" at p. 223.)
21 The overly broad nature of the subpoenas, seeking virtually every document pertaining to
22 Cross-Complainant in the possession of the subpoenaed entities, means that documents and
23 information not relevant to the issues raised by any party to the litigation nor reasonably
24 calculated to lead to the discovery of admissible evidence necessarily are included in the
25 requests. Cross-Complainant has not put his previous employment history at issue in this case.
26 He is not making a claim for loss of earning capacity or any other claim that would make his
27 prior employment relevant to his employment with Cross-Defendant and subsequent termination.
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SEPARATE STATEMENT OF DISCOVERY IN DISPUTE IN SUPPORT OF DEFENDANT/CROSS-
COMPLAINANT’S MOTION TO QUASH SUBPOENAS
Accordingly, this Court should quash the subpoenas in their entirety.
D. Cross-Complainant’s Employment Records Are Protected By The
Constitutional Right To Privacy
Both the State of California and the United States recognize that individual have a right
of privacy in certain information. (California Constitution Art. 1, § 1; Griswold v. Connecticut,
381 U.S. 479 (1965).) Even relevant, nonprivileged information may be shielded from discovery
if its disclosure would violate a person’s constitutional right of privacy. (Cobb v. Superior Court
(1979) 99 Cal.App.3d 543, 550 (“Cobb”); Britt v. Superior Court (1978) 20 Cal.3d 844, 852-864
(“Britt”).)
10 It is well established that a person’s work history and confidential personnel files are
1 within a legally recognized zone of privacy and are entitled to protection. (Alch v. Superior
12 Court (2008) 165 Cal.App.4" 1412, 1426-1427 [work history]; Board of Trustees v. Superior
2
13 Court (1981) 119 Cal.App.3d 516, 528-530 [personnel records] (“Board of Trustees”).) A party’s
14 financial records are also confidential and protected by the right of privacy. (Valley Bank of
15 Nevada v. Superior Court (1975) 15 Cal.3d 652, 655-656; Cobb, supra, 99 Cal.App.3d at p.
16 550.) Quite ofien, employment records also contain highly confidential information of third
17 parties, the disclosure of which would violate their rights to privacy with no notice that their
18 confidential information is being sought. (See Board of Trustees, supra, 119 Cal.App.3d at pp.
19 528-530.) Employment records may only be compelled to be produced if they are directly
20 relevant, not merely that they may lead to the discovery of relevant information. (/d. at p. 525.)
21 Generally, information is discoverable if it is not privileged and is either relevant to the
22 subject matter of the action or reasonably calculated to lead to the discovery of admissible
23 evidence. (Schnabel v. Superior Court (1993) 5 Cal.4™ 704, 711 (“Schnabel”).) However, when
24 confidential information is sought, it must be directly relevant to one of the issues in the action.
25 (Board of Trustees, supra, 119 Cal.App.3d at p. 525, Tylo vy. Superior Court (1997) 55
26 Cal.App.4th 1379, 1387 (“Tylo”).) The party seeking to invade the other party’s right to privacy
27 must show there is a compelling need for the information. (Williams v. Superior Court (2017) 3
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SEPARATE STATEMENT OF DISCOVERY IN DISPUTE IN SUPPORT OF DEFENDANT/CROSS-
COMPLAINANT’S MOTION TO QUASH SUBPOENAS
Cal.5"" 531, 557.) Even when discovery of private information is found directly relevant to the
issues of ongoing litigation, the compelling public need for discovery must be carefully balanced
against the right of privacy. (Tylo, supra, 55 Cal-App.4" at p. 1387.) The more “sensitive” the
information (e.g., personal financial information) sought, the greater the need for discovery must
be shown. (Hoffman Corp. v. Superior Court (1985) 172 Cal.App.3d 357, 362; Tien v. Superior
Court (2006) 139 Cal.App.4"" 528, 540.) Even when the balance weighs in favor of disclosure of
private information because of a compelling state purpose, the scope of such disclosure must be
narrowly drawn. (Britt, supra, 20 Cal.3d at p. 856.) Moreover, even when an intrusion on the
right of privacy is deemed necessary under the circumstances of a particular case, any such
10 intrusion must be the minimum intrusion necessary to achieve its objective. In other words, the
Il least intrusive means should be utilized to satisfy the compelling public need. (Allen v. Superior
12 Court (1984) 151 Cal.App.3d 447, 449 (“Allen”).)
13 E. Records From Cross-Complainant’s Previous Employers Are Not Relevant
To His Claim For Loss Of Future Earnings.
14
15 Damages in a wrongful termination case include back pay, or lost compensation, in the
16 amount a plaintiff would have earned but for the termination, less sums earned from subsequent
17 employment. (Parker v, Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181; see also
18 Morgado v. City & County of San Francisco (2020) 53 Cal.App.Sth 1216, 1220.) Damages may
19 also include front pay, or loss of future earnings, in the amount a plaintiff would have earned
20 from employment after the trial of a wrongful termination claim. (Mize-Kurzman y. Marin
21 Comm. College Dist. (2012) 202 CA4th 832, 873.) Loss of future earnings is different than loss
22 of earning capacity, or “the loss of the ability to earn money as a result of the injury.” (CACI
23 3903.) Loss of earning capacity “compensates [a plaintiff] for a for a lifetime of diminished
24 earnings |from other employers] resulting from the reputational harms [he or] she suffered as a
25 result of [employer's] discrimination.” (Williams v. Pharmacia, Inc., (7th Cir. 1998) 137 F3d
26 944, 953, emphasis added.)
27 Mt
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SEPARATE STATEMENT OF DISCOVERY IN DISPUTE IN SUPPORT OF DEFENDANT/CROSS-
COMPLAINANT'S MOTION TO QUASH SUBPOENAS
Cross-Defendant claims that records concerning Cross-Complainant’s income from prior
to his employment with Cross-Defendant are necessary for Cross-Defendant to evaluate a claim
for loss of earning capacity. However, Cross-Complainant is not making a claim for loss of
earning capacity. Rather, Cross-Complainant’s claim is for lost compensation and loss of future
earnings as a result of the wrongful termination of his employment with Cross-Defendant.
Consequently, Cross-Complainant’s earning history is not at issue in this case, and the only
financial records which relate to Cross-Complainant’s claimed economic damages in this case
are the amount that he was earning at Cross-Defendant, which Cross-Complainant believes are in
Cross-Defendant’s possession, and the amount he has earned from gainful employment since.
10 Because Cross-Complainant has not secured gainful employment since his termination, there are
il no records regarding any income associated with such employment. Whatever Cross-
12 Complainant earned from gainful employment before his employment with Cross-Defendant is
13 subject to his right of financial privacy and is not directly relevant to any issue is this case. As
14 such, Cross-Defendant’s subpoenas for Cross-Complainant’s employment records should be
15 quashed.
16 F. Cross-Defendant May Not Use Subpoenas For Protected Information In A
Fishing Expedition,
17
18 Cross-Defendant also claims that the employment records are necessary to support its
19 unspecified defenses or for impeachment purposes. However, the party seeking discovery
20 information protected by the right to privacy is not permitted to engage in the type of “fishing
21 expedition” that is permissible with respect to general discovery. (Tylo v. Superior Court, supra,
22 55 Cal.App.4" at p. 1387.) During the “meet and confer” process, Cross-Defendant stated that
23 the records are necessary because they may uncover that Cross-Complainant was previously
24 “disciplined or terminated from past employers because of clinical concerns and/or inappropriate
25 behavior toward patients or staff” or that he “sustained emotional or psychological stress while
26 employed by his previous employers.” However, Cross-Defendant has offered no evidence to
27 support these assertions.
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SEPARATE STATEMENT OF DISCOVERY IN DISPUTE IN SUPPORT OF DEFENDANT/CROSS-
COMPLAINANT’S MOTION TO QUASH SUBPOENAS
Possible relevance is not enough to warrant the invasion of a privacy right. As set forth
above, when it comes to private documents, the general standard of discovery, that the
information or documents are reasonably calculated to lead to admissible evidence, simply does
not apply. (Board of Trustees, supra, 119 Cal.App.3d at 524.) Part of this requirement is that the
party seeking the discovery must first demonstrate that the information is directly relevant to the
litigation. (Tylo, supra, 55 Cal.App.4"" at p. 1387.) “Discovery of constitutionally protected
information is on a par with discovery of privileged information and is more narrowly proscribed
than traditional discovery.” (/d.)
G. Cross-Defendant Has Not Attempted To Use Less Intrusive Means To Obtain
The Information It Seeks
10
ll When an intrusion on the right of privacy is deemed necessary under the circumstances of
12 a particular case, any such intrusion must be the minimum intrusion necessary to achieve its
a
13 objective. In other words, the least intrusive means should be utilized to satisfy the compelling
14 public need. (Allen, supra, 151 Cal.App.3d at p. 449.) In Allen, the appellate court found that the
15 lower court had abused its discretion when it failed to require a less intrusive method of
16 discovery, such as conducting a deposition without production of the records. (/d.)
17 In this case, Cross-Defendant has not attempted to obtain the information it seeks through
18 less intrusive means. It has not taken Cross-Complainant’s deposition, nor did it attempt to take
19 depositions without the production of the records. As such, subpoenaing protected records
20 without attempting to obtain the information it seeks through less intrusive means is
21 inappropriate, and the subpoenas should be quashed in their entirety.
22 Dated: February 21, 2024 LAW OFFICES OF BARNUM & AVILA
23
24 By: yuna # Aube
indal M. num
25 nna R. Avila
: Attorneys for Defendant/Cross-Complainant
26 MYLES HOKAMA
27
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SEPARATE STATEMENT OF DISCOVERY IN DISPUTE IN SUPPORT OF DEFENDANT/CROSS-
COMPLAINANT’S MOTION TO QUASH SUBPOENAS.
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Randal M. Barnum State Bar No. 111287 Jenna R. Avila State Bar No. 307639 LAW OFFICES OF RANDAL M. BARNUM 279 East H Street Benicia, CA 94510 Telephone: 707.745.3747 Facsimile: 707.745.4580 rbarnum@rmblaw.com jnunes@rmblaw.com Attorneys for Defendant/Cross-Complainant MYLES HOKAMA SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA BARBARA 10 (UNLIMITED JURISDICTION) 11 STEVEN G. JOHNSON DENTAL CASE NO. 23CV00884 12 CORPORATION, DISCOVERY 4 Plaintiff, 13 SEPARATE STATEMENT OF DISCOVERY 14 v. IN DISPUTE IN SUPPORT OF MYLES HOKAMA, DEFENDANT/CROSS-COMPLAINANT’S 15 MOTION TO QUASH SUBPOENAS [CCP § 16 Defendant. 1987.1] Hearing Date: April 23, 2024 17 Time: 8:30 a.m. 18 Dept: 2 Judge: Hon. James F. Rigali 19 20 Complaint Filed: March 2, 2023 Cross-Complaint Filed: June 15, 2023 21 22 MYLES HOKAMA, 23 Cross-Complainant, 24 Vv. STEVEN G. JOHNSON DENTAL 25 CORPORATION; and Roes 1 through 10, Inclusive, 26 Cross-Defendants. 27 28 “T+ SEPARATE STATEMENT OF DISCOVERY IN DISPUTE IN SUPPORT OF DEFENDANT/CROSS- COMPLAINANT’S MOTION TO QUASH SUBPOENAS 1 COMES NOW Defendant/Cross-Complainant MYLES HOKAMA (hereinafter “Cross- 2}} Complainant”), and in support of his motion to quash subpoenas, files the following Separate 3 Statement of Discovery in Dispute: 4 CROSS-DEFENDANT’S SUBPOENAS FROM SMILELAND DENTAL AND 5 WESTERN DENTAL SERVICES, INC. 6 On February 2, 2024, Plaintiff/Cross-Defendant STEVEN G. JOHNSON DENTAL 7||CORPORATION (hereinafter “Cross-Defendant’”) issued subpoenas for Cross-Complainant’s 8 |/employment records from Smileland Dental and Western Dental Services, Inc. for production of 9||documents at a deposition to occur on February 26, 2024. The documents requested by each 10}|subpoena are identical and are substantially identical as follows: ll YOU are required to produce any and all documents in YOUR possession or custody or otherwise under your control that pertain 12 to any application of employment by or work performed by Defendant and Cross-Complainant Myles Mitsuo Hokama (aka 13 Myles D. Hokama, Myles Hokama, DDS, Dr. Myles Hokama), whose Social Security Number is xxx-xx-7629, and whose date of 14 birth is September 14, 1953. 15 The Smileland Dental subpoena requests documents for the period of January 2019 16||through the present. The Western Dental Services, Inc. subpoena requests documents for the 17||period of January 2008 to the present. 18 Cross-Defendant’s subpoenas also included the following DEFINITIONS and 19 DOCUMENTS TO BE PRODUCED: 20 I. DEFINITIONS. 21 1. The terms “DR. HOKAMA” as used herein, means and refers to Defendant and Cross-Complainant Myles Mitsuo Hokama (aka 22 Myles D. Hokama, Myles Hokama, D.D.S., Dr. Myles Hokama). 23 2. The words “YOU” and “YOUR,” as used herein, means and refers to the custodian of records for the company or entity, and/or 24 any affiliates, associates or subsidiaries thereof, to which the accompanying deposition subpoena is directed. [The Western 25 Dental Services, Inc. subpoena includes (a) Western Dental Service, Inc., (b) Access Dental Centers; and (c) Cherag Dinshaw 26 Sarkari D.D.S. (Subsidiary of Guardian Insurance Co. dba Access Dental Services.] 27 28 -2- SEPARATE STATEMENT OF DISCOVERY IN DISPUTE IN SUPPORT OF DEFENDANT/CROSS- COMPLAINANT'S MOTION TO QUASH SUBPOENAS. 3. The terms “DOCUMENT” and/or “DOCUMENTS” as _used herein is synonymous with the term “document” and/or “writing” in California Evidence Code § 250 and includes any written, recorded, electronically generated, filmed, or graphic matter, whether produced or reproduced on papers, cards, tapes, film, facsimile, computer storage device or any other media, and includes, but is not limited to, memoranda, notes, electronic communications, electronic documents, e-mails, minutes, records, insurance applications, insurance election and/or claim forms, reports, photographs, diagnoses, medical tests and test results, correspondence, telegrams, telexes, diaries, bookkeeping entries, financial statements, checks, check stubs, reports, studies, charts, graphs, statements, notebooks, handwritten notes, applications, agreements, books, pamphlets, periodicals, leaflets, appointments calendars, work papers, and notes, records and recordings of oral communications, and also includes, but is not limited to, originals and all copies which are different in any way from the original, whether by interlineation, receipt stamp, notation, indication of 10 copies sent or received, or otherwise, and drafts. ll Il. DOCUMENTS TO BE PRODUCED. 12 1, Any and all personnel files or any other file maintained by YOU regarding DR. HOKAMA for the entire time period of his 2 13 employment with YOUR company or entity [from January 2008 to the present for Western Dental Services, Inc. and from January 14 2019 to the present for Smileland Dental]. 15 2. All DOCUMENTS in YOUR possession, custody or control that reflect, discuss, mention, comment upon or otherwise refer to the 16 employment application, agreement, contract, and/or agreements by and/or between YOU and DR. HOKAMA [from January 2008 17 to the present for Western Dental Services, Inc. and from January 2019 to the present for Smileland Dental] to the present regarding 18 employment or services rendered or to be rendered by DR. HOKAMA. 19 3. All DOCUMENTS in YOUR possession, custody or control that 20 reflect, discuss, mention, comment upon or otherwise refer to DR. HOKAMA’s job titles, duties and/or requirements, positions held, 21 job promotions or demotions, applications for changes in job title and/or status, and/or changes in job title and/or status and/or pay 22 increases or decreases during DR. HOKAMA’s employment with YOU [from January 2008 to the present for Western Dental 23 Services, Inc. and from January 2019 to the present for Smileland Dental]. 24 4. All DOCUMENTS in YOUR possession, custody or control that 25 reflect, discuss, mention, comment upon or otherwise refer to DR. HOKAMA’s compensation and benefits, including tax records, 26 and pay stubs and/or payroll records, for any period during DR. HOKAMA’s employment with YOU [from January 2008 to the 27 present for Western Dental Services, Inc. and from January 2019 to the present for Smileland Dental]. 28 -3- SEPARATE STATEMENT OF DISCOVERY IN DISPUTE IN SUPPORT OF DEFENDANT/CROSS- COMPLAINANT’S MOTION TO QUASH SUBPOENAS 5, All DOCUMENTS in YOUR possession, custody or control that reflect, discuss, mention, comment upon or otherwise refer to any oral or written complaints, and/or claims (either formal or informal) made by anyone (including but not limited to staff and patients), about DR. HOKAMA [from January 2008 to the present for Western Dental Services, Inc. and from January 2019 to the present for Smileland Dental]. 6. All DOCUMENTS in your possession, custody or control that reflect, discuss, mention, comment upon or otherwise refer to any disciplinary write ups or counseling forms, written or verbal warnings, demotions, reductions in compensation, and/or behavior or work performance issues regarding DR. HOKAMA while employed by YOU [from January 2008 to the present for Western Dental Services, Inc. and from January 2019 to the present for Smileland Dental]. CROSS-COMPLAINANT’S _ OBJECTIONS _ AND__ SUPPORTING _ LEGAL 10 AUTHORITY __IN OPPOSITION TO SUBPOENAS FOR EMPLOYMENT RECORDS FROM SMILELAND DENTAL AND WESTERN DENTAL 11 SERVICES, INC. 12 A This Court Has the Authority to Quash and/or Issue_a Protective Orde Limiting the Scope of Deposition Subpoenas. 13 14 California’s Code of Civil Procedure affords parties and non-parties protection against 15 defective subpoenas. Specifically, Code of Civil Procedure section 1987.1 provides that the 16 court, upon a motion “reasonably made” by any party, “may make an order quashing the 17 subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions 18 as the court shall declare, including protective orders. In addition, the court may make any other 19 order as may be appropriate to protect the person from unreasonable or oppressive demands, 20 including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc. 21 §1987.1(a).) 22 “Although the scope of civil discovery is broad, it is not limitless.” (Calcor Space 23 Facility, Inc. v. Superior Court (1997) 53 Cal.App.4" 216, 223 (“Calcor Space Facility”).) A 24 subpoena that seeks information that is privileged, protected, or irrelevant may be quashed. 25 (Code Civ. Proc. §2017.010.) Additionally, a court may issue a protective order limiting the 26 scope of discovery “if it determines that the burden, expense or intrusiveness of the discovery 27 clearly outweighs the likelihood that the information will lead to the discovery of admissible 28 -4- SEPARATE STATEMENT OF DISCOVERY IN DISPUTE IN SUPPORT OF DEFENDANT/CROSS- COMPLAINANT’S MOTION TO QUASH SUBPOENAS evidence.” (Code Civ. Proc. §2017.020.) The more sensitive the information sought in the subpoena, the greater the need for the discovery must be shown. (Hoffinan Corp. v. Superior Court (1085) 172 Cal.App.3d 357, 362.) The party seeking discovery must show a particularized need for the confidential information sought. The broad “relevancy to the subject matter” standard is not enough. The court must be convinced that the information is directly relevant to a cause of action or defense, i.e., that it is essential to determining the truth of the matters in dispute. (Britt v. Superior Court (1978) 20 Cal.3d 844, 856 (“Britt’).) Further, in the context of non-party discovery subpoenas, the courts have determined that requests that are not likely to lead to relevant or admissible evidence, not specified with 10 reasonable particularity, and require overly burdensome searches by non-parties are not lI reasonable. (Calcor Space Facility, supra, 53 Cal.App.4" at p. 221.) 12 As set forth herein, an order quashing Cross-Defendant’s overly broad and intrusive 13 subpoenas is appropriate. 14 B The Document Request In The Subpoenas Is Vague And Overbroad 15 Under California law, a subpoena must describe the documents to be produced with 16 reasonable particularity. (Calcor Space Facility, supra, 53 Cal.App.4" at p. 218; see Code Civ. 17 Proc. §2025.220(a)(4) (providing that a deposition notice shall state the “specification with 18 reasonable particularity of any materials or category of materials to be produced by the 19 deponent.”) “When discovery requests are grossly overbroad on their face, and hence do not 20 appear reasonably related to a legitimate discovery need, a reasonable inference can be drawn of 21 an intent to harass and improperly burden.” (Obregon v. Superior Court (1998) 67 Cal.App.4" 22 424, 431 “Obregon”).) 23 The court’s decision in Calcor Space Facility is directly on point. In that case, the 24 plaintiff issued a subpoena to a nonparty that included a twelve-page document request 25 purporting to be detailed by was interpreted by the court to essentially consist of a “single 26 sentence: Produce everything in your possession which in any way relates to gun mounts.” (53 27 Cal.App.4" at p. 222.) The appellate court held that this request was insufficiently detailed and 28 -5- SEPARATE STATEMENT OF DISCOVERY IN DISPUTE IN SUPPORT OF DEFENDANT/CROSS- COMPLAINANT’S MOTION TO QUASH SUBPOENAS. issued a writ of mandate directing the trial court to vacate orders compelling the nonparty to produce the requested materials, because the subpoena described “generalized broad categories of materials rather than specific documents, or at least, categories of documents or materials which are reasonably particularized.” (/d. at p. 219.) Here, Cross-Defendant does the same thing as did the plaintiffs in Calcor Space Facility. Cross-Defendant’s subpoenas seek a laundry list of items that essentially seek everything in the deponents’ possession which in any way relates to Cross-Complainant. As demonstrated by Calcor Space Facility, Cross-Defendant’s document requests are insufficiently detailed, vague, and overbroad. This Court, therefore. can draw the reasonable inference that Cross-Defendant, 10 by issuing subpoenas for all of Cross-Complainant’s employment records, intends to harass and 11 improperly burden the nonparties to whom the subpoenas are directed. (See, Obregon, supra, 67 12 Cal.App.4" at p. 431.) Accordingly, this Court should quash the subpoenas. a 13 Cc. The Subpoenas Seek Information That Is Not Relevant Nor Reasonably Calculated To Lead To The Discovery Of Admissible Evidence 14 15 “Although the scope of civil discovery is broad, it is not limitless.” (Calcor Space 16 Facility, supra, 53 Cal.App.4" at p. 223.) Parties may conduct discovery only of matters that are 17 relevant or are reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. 18 Proc. §2017.010.) “The burden rests upon the party seeking the discovery to provide evidence 19 from which the court may determine these conditions are met. (Calcor Space Facility, supra, 53 20 Cal.App.4" at p. 223.) 21 The overly broad nature of the subpoenas, seeking virtually every document pertaining to 22 Cross-Complainant in the possession of the subpoenaed entities, means that documents and 23 information not relevant to the issues raised by any party to the litigation nor reasonably 24 calculated to lead to the discovery of admissible evidence necessarily are included in the 25 requests. Cross-Complainant has not put his previous employment history at issue in this case. 26 He is not making a claim for loss of earning capacity or any other claim that would make his 27 prior employment relevant to his employment with Cross-Defendant and subsequent termination. 28 -6- SEPARATE STATEMENT OF DISCOVERY IN DISPUTE IN SUPPORT OF DEFENDANT/CROSS- COMPLAINANT’S MOTION TO QUASH SUBPOENAS Accordingly, this Court should quash the subpoenas in their entirety. D. Cross-Complainant’s Employment Records Are Protected By The Constitutional Right To Privacy Both the State of California and the United States recognize that individual have a right of privacy in certain information. (California Constitution Art. 1, § 1; Griswold v. Connecticut, 381 U.S. 479 (1965).) Even relevant, nonprivileged information may be shielded from discovery if its disclosure would violate a person’s constitutional right of privacy. (Cobb v. Superior Court (1979) 99 Cal.App.3d 543, 550 (“Cobb”); Britt v. Superior Court (1978) 20 Cal.3d 844, 852-864 (“Britt”).) 10 It is well established that a person’s work history and confidential personnel files are 1 within a legally recognized zone of privacy and are entitled to protection. (Alch v. Superior 12 Court (2008) 165 Cal.App.4" 1412, 1426-1427 [work history]; Board of Trustees v. Superior 2 13 Court (1981) 119 Cal.App.3d 516, 528-530 [personnel records] (“Board of Trustees”).) A party’s 14 financial records are also confidential and protected by the right of privacy. (Valley Bank of 15 Nevada v. Superior Court (1975) 15 Cal.3d 652, 655-656; Cobb, supra, 99 Cal.App.3d at p. 16 550.) Quite ofien, employment records also contain highly confidential information of third 17 parties, the disclosure of which would violate their rights to privacy with no notice that their 18 confidential information is being sought. (See Board of Trustees, supra, 119 Cal.App.3d at pp. 19 528-530.) Employment records may only be compelled to be produced if they are directly 20 relevant, not merely that they may lead to the discovery of relevant information. (/d. at p. 525.) 21 Generally, information is discoverable if it is not privileged and is either relevant to the 22 subject matter of the action or reasonably calculated to lead to the discovery of admissible 23 evidence. (Schnabel v. Superior Court (1993) 5 Cal.4™ 704, 711 (“Schnabel”).) However, when 24 confidential information is sought, it must be directly relevant to one of the issues in the action. 25 (Board of Trustees, supra, 119 Cal.App.3d at p. 525, Tylo vy. Superior Court (1997) 55 26 Cal.App.4th 1379, 1387 (“Tylo”).) The party seeking to invade the other party’s right to privacy 27 must show there is a compelling need for the information. (Williams v. Superior Court (2017) 3 28 -7- SEPARATE STATEMENT OF DISCOVERY IN DISPUTE IN SUPPORT OF DEFENDANT/CROSS- COMPLAINANT’S MOTION TO QUASH SUBPOENAS Cal.5"" 531, 557.) Even when discovery of private information is found directly relevant to the issues of ongoing litigation, the compelling public need for discovery must be carefully balanced against the right of privacy. (Tylo, supra, 55 Cal-App.4" at p. 1387.) The more “sensitive” the information (e.g., personal financial information) sought, the greater the need for discovery must be shown. (Hoffman Corp. v. Superior Court (1985) 172 Cal.App.3d 357, 362; Tien v. Superior Court (2006) 139 Cal.App.4"" 528, 540.) Even when the balance weighs in favor of disclosure of private information because of a compelling state purpose, the scope of such disclosure must be narrowly drawn. (Britt, supra, 20 Cal.3d at p. 856.) Moreover, even when an intrusion on the right of privacy is deemed necessary under the circumstances of a particular case, any such 10 intrusion must be the minimum intrusion necessary to achieve its objective. In other words, the Il least intrusive means should be utilized to satisfy the compelling public need. (Allen v. Superior 12 Court (1984) 151 Cal.App.3d 447, 449 (“Allen”).) 13 E. Records From Cross-Complainant’s Previous Employers Are Not Relevant To His Claim For Loss Of Future Earnings. 14 15 Damages in a wrongful termination case include back pay, or lost compensation, in the 16 amount a plaintiff would have earned but for the termination, less sums earned from subsequent 17 employment. (Parker v, Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181; see also 18 Morgado v. City & County of San Francisco (2020) 53 Cal.App.Sth 1216, 1220.) Damages may 19 also include front pay, or loss of future earnings, in the amount a plaintiff would have earned 20 from employment after the trial of a wrongful termination claim. (Mize-Kurzman y. Marin 21 Comm. College Dist. (2012) 202 CA4th 832, 873.) Loss of future earnings is different than loss 22 of earning capacity, or “the loss of the ability to earn money as a result of the injury.” (CACI 23 3903.) Loss of earning capacity “compensates [a plaintiff] for a for a lifetime of diminished 24 earnings |from other employers] resulting from the reputational harms [he or] she suffered as a 25 result of [employer's] discrimination.” (Williams v. Pharmacia, Inc., (7th Cir. 1998) 137 F3d 26 944, 953, emphasis added.) 27 Mt 28 -8- SEPARATE STATEMENT OF DISCOVERY IN DISPUTE IN SUPPORT OF DEFENDANT/CROSS- COMPLAINANT'S MOTION TO QUASH SUBPOENAS Cross-Defendant claims that records concerning Cross-Complainant’s income from prior to his employment with Cross-Defendant are necessary for Cross-Defendant to evaluate a claim for loss of earning capacity. However, Cross-Complainant is not making a claim for loss of earning capacity. Rather, Cross-Complainant’s claim is for lost compensation and loss of future earnings as a result of the wrongful termination of his employment with Cross-Defendant. Consequently, Cross-Complainant’s earning history is not at issue in this case, and the only financial records which relate to Cross-Complainant’s claimed economic damages in this case are the amount that he was earning at Cross-Defendant, which Cross-Complainant believes are in Cross-Defendant’s possession, and the amount he has earned from gainful employment since. 10 Because Cross-Complainant has not secured gainful employment since his termination, there are il no records regarding any income associated with such employment. Whatever Cross- 12 Complainant earned from gainful employment before his employment with Cross-Defendant is 13 subject to his right of financial privacy and is not directly relevant to any issue is this case. As 14 such, Cross-Defendant’s subpoenas for Cross-Complainant’s employment records should be 15 quashed. 16 F. Cross-Defendant May Not Use Subpoenas For Protected Information In A Fishing Expedition, 17 18 Cross-Defendant also claims that the employment records are necessary to support its 19 unspecified defenses or for impeachment purposes. However, the party seeking discovery 20 information protected by the right to privacy is not permitted to engage in the type of “fishing 21 expedition” that is permissible with respect to general discovery. (Tylo v. Superior Court, supra, 22 55 Cal.App.4" at p. 1387.) During the “meet and confer” process, Cross-Defendant stated that 23 the records are necessary because they may uncover that Cross-Complainant was previously 24 “disciplined or terminated from past employers because of clinical concerns and/or inappropriate 25 behavior toward patients or staff” or that he “sustained emotional or psychological stress while 26 employed by his previous employers.” However, Cross-Defendant has offered no evidence to 27 support these assertions. 28 -9- SEPARATE STATEMENT OF DISCOVERY IN DISPUTE IN SUPPORT OF DEFENDANT/CROSS- COMPLAINANT’S MOTION TO QUASH SUBPOENAS Possible relevance is not enough to warrant the invasion of a privacy right. As set forth above, when it comes to private documents, the general standard of discovery, that the information or documents are reasonably calculated to lead to admissible evidence, simply does not apply. (Board of Trustees, supra, 119 Cal.App.3d at 524.) Part of this requirement is that the party seeking the discovery must first demonstrate that the information is directly relevant to the litigation. (Tylo, supra, 55 Cal.App.4"" at p. 1387.) “Discovery of constitutionally protected information is on a par with discovery of privileged information and is more narrowly proscribed than traditional discovery.” (/d.) G. Cross-Defendant Has Not Attempted To Use Less Intrusive Means To Obtain The Information It Seeks 10 ll When an intrusion on the right of privacy is deemed necessary under the circumstances of 12 a particular case, any such intrusion must be the minimum intrusion necessary to achieve its a 13 objective. In other words, the least intrusive means should be utilized to satisfy the compelling 14 public need. (Allen, supra, 151 Cal.App.3d at p. 449.) In Allen, the appellate court found that the 15 lower court had abused its discretion when it failed to require a less intrusive method of 16 discovery, such as conducting a deposition without production of the records. (/d.) 17 In this case, Cross-Defendant has not attempted to obtain the information it seeks through 18 less intrusive means. It has not taken Cross-Complainant’s deposition, nor did it attempt to take 19 depositions without the production of the records. As such, subpoenaing protected records 20 without attempting to obtain the information it seeks through less intrusive means is 21 inappropriate, and the subpoenas should be quashed in their entirety. 22 Dated: February 21, 2024 LAW OFFICES OF BARNUM & AVILA 23 24 By: yuna # Aube indal M. num 25 nna R. Avila : Attorneys for Defendant/Cross-Complainant 26 MYLES HOKAMA 27 28 -10- SEPARATE STATEMENT OF DISCOVERY IN DISPUTE IN SUPPORT OF DEFENDANT/CROSS- COMPLAINANT’S MOTION TO QUASH SUBPOENAS.