Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

Daniel Oschkowsky, Plaintiff,

Case No.: BC624942 vs. [Tentative] RULING

Vape N Taste, LLC and Does 1 through 100, Defendants.

Hearing Date: August 15, 2019

Moving Party: Plaintiff Daniel Oschkowsky

Responding Party: None

Motion to Quash Defendant Vape N Taste, LLC’s Deposition Subpoena for Production of Employment Records

The Court considered the motion. The parties did not file an opposition or reply papers.

RULING

The motion is granted.

BACKGROUND

This is a products liability case for alleged damages including burns suffered by Plaintiff Daniel Oschkowsky (“Plaintiff”) on January 2, 2016 when Defendant Vape N Taste, LLC’s (“Defendant”) electronic cigarette products exploded in his pants pocket.

On June 24, 2016, Plaintiff filed his complaint asserting four causes of action: (1) strict products liability; (2) fraudulent concealment; (3) intentional misrepresentation; and (4) negligence.

On October 28, 2016, Defendant cross-complained against Roes 1 through 50 seeking indemnity and contribution.

On April 21, 2017, Plaintiff filed the operative first amended complaint (“FAC”) asserting the same four causes of action. Plaintiff dropped lost earnings in its prayer for special damages. (Compare Complaint prayer ¶ 2 with FAC prayer ¶ 2.)

On October 2, 2017, Defendant named Cross-Defendant LA Vapor, Inc. (“LA Vapor”) as Roe 1.

On May 6, 2019, Defendant served a deposition subpoena for production of employment/personnel records to Plaintiff’s employer Sodexo. The subpoena sought: “any and all employment/personnel records, workers’ comp claims, dates of attendance, applications, performance records, disciplinary records, reviews, evaluations, earnings, medical reports, etc., pertaining to [Plaintiff].” (George Decl. Ex. 1.)

On June 21, 2019, Plaintiff filed this motion seeking to quash the subject subpoena.

Defendant does not oppose.

SERVICE ISSUES

Before the Court can consider the merits, the Court notes a service defect. According to the proof of service, Plaintiff served his motion on Defendant on June 21, 2019 by mail on all parties. However, Plaintiff served LA Vapor’s attorneys incorrectly. Specifically, Plaintiff properly served Collins Muir + Stewart LLP, but did not do so properly on Astourian & Associates, Inc., which was served at its old address. (On February 7, 2019, Astourian & Associates, Inc. filed a change of address with the Court.) However, because this motion does not appear to involve LA Vaport’s defenses, the Court disregards this mistake for this motion’s purposes.

The Court reminds the parties to be mindful of all counsel’s contact information for future service.

LEGAL AUTHORITY

If a subpoena requires the attendance of a witness or the production of documents, the court may, upon motion reasonably made, make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. (Code Civ. Proc., § 1987.1, subd. (a).)

In making an order pursuant to Code of Civil Procedure section 1987.1, “the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Id., § 1987.2, subd. (a).)

Courts have found that “personnel records and employment history are within the scope of the protection provided by the state and federal Constitutions.” (San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1097 disapproved on other grounds in Williams v. Superior Court (2017) 3 Cal.5th 531, 558 fn. 8.)

DISCUSSION

Defendant’s subpoena seeks to obtain Plaintiff’s unlimited employment and personnel records.

Plaintiff’s prayer does not include a claim for lost earnings. Additionally, Defendant does not otherwise show that Plaintiff intends to pray for lost earnings, especially considering Plaintiff dropped his prayer for lost earnings in his FAC. Accordingly, there is no apparent reason why Defendant needs an unlimited disclosure of Plaintiff’s employment and personnel records.

Further, it is unclear why Defendant needs Plaintiff’s employment records to dispute causation and damages, when Plaintiff’s medical records would provide the information Defendant seeks. This is a product liability action, not an employment action.

Accordingly, Defendant presents no justification to invade Plaintiff’s privacy in its subpoena.

Finally, Plaintiff does not provide proof or otherwise state in a declaration that Defendant already possesses Plaintiff’s employment records at the time of and prior to the subject injury. (Memorandum of points and authorities 8:1-4.) Therefore, the Court rejects this argument as an alternative basis to grant this motion.

SANCTIONS

Code of Civil Procedure section 2023.040 requires the notice of motion (as opposed to the points and authorities) to indicate each party and/or attorney against whom sanctions are sought.

Plaintiff requests the Court to sanction Defendant. It is unclear whether Plaintiff requests monetary sanctions or a different sanction. (Memorandum of points and authorities 10:6-25.) Nevertheless, Plaintiff does not properly notice this request for sanctions in his notice of motion. Therefore, the Court denies Plaintiff’s request for sanctions.

CONCLUSION

The Court grants Plaintiff’s motion.

The Court denies Plaintiff’s request to sanction Defendant.

Plaintiff is to give notice and file proof of service.