Filed 2/19/15 Hoffman v. Super. Ct. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



JOHN ANDREW HOFFMAN,                                               D066513

         Petitioner,                                               (Super. Ct. No. 3-2013-00071216-CU-
                                                                   CO-CTL)
         v.

THE SUPERIOR COURT OF SAN
DIEGO COUNTY,

         Respondent;


QUIDEL CORPORATION,

         Real Party in Interest.


         PROCEEDINGS in mandate after superior court granted a motion to compel

further responses to demand for inspection of documents. Timothy B. Taylor, Judge.

Petition granted in part and denied in part.



         Epstein Becker & Green, David Jacobs and Ted A. Gehring for Petitioner.
       No appearance for Respondent.

       Call & Jenson, Julie R. Trotter, Melinda Evans and Deborah A. Gubernick for

Real Party in Interest.

       Petitioner John Andrew Hoffman seeks extraordinary relief to compel respondent

San Diego County Superior Court to set aside that part of its order granting the motion by

real party in interest Quidel Corporation (Quidel) to compel further responses to Quidel's

demand for inspection of documents. In his petition for writ of mandate, Hoffman claims

the trial court erred in ordering him to produce documents in response to two categories

of requests: (1) documents that he contends will disclose confidential or proprietary

information of his current employer, Becton, Dickinson and Company (BD); and

(2) documents dealing with his compensation at BD that he contends are subject to his

constitutional right to privacy.

       We will grant the petition in part, directing the trial court to set aside that portion

of its order affecting responses to requests for documents that Hoffman contends will

disclose BD's confidential or proprietary information, including trade secrets, and to

reconsider Quidel's motion directed to those responses under the appropriate procedure.

We will deny the petition as to the responses to requests for documents dealing with

Hoffman's compensation at BD.




                                               2
                                              I.

                  FACTUAL AND PROCEDURAL BACKGROUND1

       A.     The Underlying Action

       In its complaint, Quidel alleges that it is in the business of "developing,

manufacturing and marketing point-of-care . . . diagnostic tests for the detection and

management of a variety of medical conditions and illnesses." As part of this business,

the complaint further alleges, Quidel places great importance on its proprietary,

confidential and trade secret information — including its technological advances,

products and pricing information, competitive strategies and internal business plans —

taking care to safeguard this information and to prevent its disclosure by closely

managing who has access to confidential, proprietary and trade secret information.

       As pertinent to the issues in this writ proceeding, Quidel avers that it hired

Hoffman in July 2006 and that Hoffman left Quidel's employ in May 2013 in order to

work for BD, one of Quidel's "main direct competitors."2 During the time Quidel

employed Hoffman, according to the complaint, Hoffman received regular promotions,

ultimately holding the position of "Associate Director in Quidel's Molecular Diagnostic



1      Given the procedural posture of the underlying civil action, which we will
describe in the text, post, the record on appeal and briefs contain only allegations and
argument related to the claims being asserted — i.e., very little, if any, evidence. Thus,
we do not intend any factual recitation or statement in this opinion to be a finding or an
affirmance of any finding.

2    In his petition, Hoffman affirmatively acknowledges that "some of " BD's products
"compete against those of Quidel."

                                              3
Commercial Operations Department" at the time he resigned.3 As part of his job

responsibilities over the years, Quidel alleges that it gave Hoffman access to "highly

confidential information," describing this information generically as "Quidel's restricted

customer database, confidential customer information, Quidel's strategies and views

regarding key industry opinion leaders,[4] pricing and marketing strategies, and sales

training materials."

       The complaint alleges that prior to and as a condition of his employment with

Quidel, Hoffman signed a written "Agreement Re Confidential Information, Inventions,

Non-Solicitation and Conflict of Interest" (Confidentiality Agreement).5 The

Confidentiality Agreement purportedly prohibits Hoffman from "disclosing or using any

confidential information or trade secrets, either directly or indirectly," describing such

confidential information generally as " 'formulas, processes, product research, customer

lists, key customer contacts, manufacturing and other techniques, marketing plans,

pricing strategies, financial plans and projections, inventory planning, and compilations

3      Previously, Quidel alleges, Hoffman held positions as "New Venture Program
Manager"; "Manager, Sales Operations"; "Senior Marketing Manager"; and "Associate
Director, Strategic Marketing." We are not told what responsibilities or obligations were
associated with these positions.

4       Hoffman tells us "key opinion leaders" are "individuals who have played a 'central
role in Quidel's marketing strategy and who are used by the [Quidel] sales team as third-
party evidence of product performance.' "

5      The parties have not provided a copy of the Confidentiality Agreement. Our
description and understanding of what is contained in the Confidentiality Agreement,
therefore, is necessarily limited to allegations in the complaint and the arguments in
written submissions.

                                              4
of confidential information.' " In one cause of action, Quidel (as the sole plaintiff) alleges

that Hoffman (as the sole named defendant) breached the Confidentiality Agreement by,

among other actions: copying, gathering and collecting Quidel's confidential and

proprietary information for his and BD's benefit; using Quidel's confidential and

proprietary lists of customers and key contacts; and disclosing, using or mischaracterizing

Quidel's strategic marketing plans.6 Quidel seeks a permanent injunction and damages.

       During the discovery process and disputes that led to the instant writ petition,

described more fully post, in February 2014 the court entered a protective order at the

parties' request. Among other matters, the 10-page document covered procedures

available to the parties to protect against the improper disclosure of confidential or

protected information produced during the litigation.

       B.     Quidel Seeks Discovery from Defendant Hoffman

       As relevant to this writ proceeding, in November 2013 Quidel served Hoffman

with an inspection demand, requesting in part the production of the following categories

of documents and communications:7

       Request No. 6:       "All DOCUMENTS that constitute, refer or relate to
                            customer lists of Quidel."

       Request No. 10:      "All DOCUMENTS that constitute, refer or relate to
                            customer information of Quidel."


6      Quidel asserts some of these allegations on information and belief.

7       The inspection demand contained 30 separate requests. The words in uppercase
letters are defined in the request. We do not include the definitions here, because they do
not affect our analysis or the outcome.

                                              5
      Request No. 14:      "All DOCUMENTS that constitute, refer or relate to Quidel's
                           contacts."

      Request No. 15:      "All DOCUMENTS that refer or relate to key opinion leaders
                           with whom Quidel has or has had a relationship."

      Request No. 20:      "All COMMUNICATIONS between YOU and [BD]
                           regarding Quidel's marketing and sales strategies for
                           SOFIA."8

      Request No. 21:      "All COMMUNICATIONS between YOU and [BD]
                           regarding Quidel's customers."

      Request No. 25:      "All COMMUNICATIONS between YOU and key opinion
                           leaders with whom Quidel has or has had a relationship."

      Request No. 26:      "All COMMUNICATIONS between YOU and distributors of
                           Quidel."

      Request No. 27:      "All DOCUMENTS that refer or relate to YOUR job duties at
                           [BD]."

      Request No. 28:      "All DOCUMENTS that constitute, refer or relate to YOUR
                           compensation package at [BD], including the terms of any
                           commissions, bonuses, or incentives that are part of YOUR
                           compensation package."

      Request No. 29:      "All COMMUNICATIONS that YOU have had with any
                           other person regarding the study performed by Dr. Jim Dunn
                           comparing SOFIA, Veritor and Binaxnow."9

The parties agree that these requests seek documents in two general categories:

(1) customers and distributors of Quidel and key opinion leaders with whom Quidel has

8      Quidel tells us that SOFIA® is "a highly sophisticated, next generation influenza
rapid-testing system" launched by Quidel at a time when Hoffman was employed by
Quidel. Hoffman states, and Quidel agrees, that SOFIA® competes with a BD product,
Veritor™, that Hoffman now markets.

9     Hoffman tells us that Dunn is a "key opinion leader for BD." We are not told what
Binaxnow is or who owns it, though from the context of the request we infer it is testing
system comparable to SOFIA® and Veritor™.

                                            6
relationships; and (2) Hoffman's employment relationship with, including compensation

from, BD. For convenience only, we will refer to these categories, respectively, as

(1) Quidel relationship requests; and (2) Hoffman-BD employment requests.

       Dissatisfied with Hoffman's responses to these requests10 following a lengthy

meet and confer process, in May 2014 Quidel filed a motion to compel further responses

and to award sanctions against Hoffman and his attorneys.11 For the most part, Quidel

argued that the requested information was "reasonable, relevant and necessary,"

Hoffman's failure to respond more fully was unreasonable, and the existing protective

order adequately protected Hoffman.

       Although Hoffman opposed the motion on numerous grounds, we will discuss

only those grounds relevant to the issues he raises in his writ petition. With regard to the

Quidel relationship requests, Hoffman argued that because they sought "proprietary and

confidential information" of nonparty BD, (1) he is precluded by his employment

agreement with BD from complying with them; (2) the existing protective order was not

adequate to protect Hoffman against claims by BD for breach of the employment



10     We note that included among the general boilerplate objections asserted by
Hoffman in his December 2013 written response (which was before entry of the
protective order) was an objection to any request that called for the production of
"documents containing proprietary information, trade secrets and/or other confidential
business information," unless and until "an appropriate protective order regarding
confidential information has been entered."

11      At the same time, Quidel also filed motions to compel further responses to special
interrogatories and requests for admissions. Neither they nor the court's rulings on them
are at issue here.

                                             7
agreement; and (3) Quidel was required to, but did not, make a showing of need stronger

than mere relevance.12 With regard to the Hoffman-BD employment requests, Hoffman

argued that although the right to privacy in his financial documents required a showing of

" 'direct relevance' " that Quidel had not established, Hoffman had produced "the

incentive plans" with BD from which Quidel can ascertain whether and what types of

incentives enhance his base compensation (for which he continued to assert his right to

privacy). Finally, Hoffman argued that he and his attorneys should not be sanctioned, but

that Quidel and its attorneys should be sanctioned for bringing the motion.

       In reply, Quidel argued as to the Quidel relationship requests: (1) they did not

seek responses concerning BD's confidential information, but only what Hoffman did

with Quidel's confidential information; (2) Hoffman cannot hide behind his employment

agreement with BD to avoid complying with otherwise valid discovery requests; (3) the

existing protective order was adequate to prevent the improper disclosure of whatever


12      Hoffman did not mention Evidence Code section 1060 (section 1060), which has
been operative since January 1967 and provides in full: "If he or his agent or employee
claims the privilege, the owner of a trade secret has a privilege to refuse to disclose the
secret, and to prevent another from disclosing it, if the allowance of the privilege will not
tend to conceal fraud or otherwise work injustice." (Stats. 1965, ch. 299, § 2.) Evidence
Code sections 1061 and 1063 set forth lengthy definitions and procedures to be applied in
civil actions in which evidence of trade secrets may be disclosed.
        Of the 10 cases cited by Hoffman to the trial court, only one mentioned a trade
secret, Hofmann Corp. v. Superior Court (1985) 172 Cal.App.3d 357 (Hofmann Corp.).
Hoffman relied on the case in support of his position that because Quidel's requests called
for the production of BD's confidential information, Quidel was required to make "a
stronger showing of need for such discovery." In Hofmann Corp., a products liability
action, the requested customer list was a considered a trade secret containing "sensitive
information," even though there were no anticompetitive issues associated with the
lawsuit or the requested discovery. (Id. at p. 362.)

                                             8
confidential information might be disclosed; and (4) if Hoffman was asserting a privilege,

then he had the burden of clearly identifying the privilege and establishing the facts in

support. As to the Hoffman-BD employment requests, Quidel argued that, because

Hoffman's compensation package may show a motive for Hoffman to disclose

information in breach of the Confidentiality Agreement (e.g., an incentive or ability to

profit from such disclosure), Quidel met whatever threshold showing might be required.

Finally, Quidel explained that it should not be sanctioned, because it brought its motion

in good faith after extensive yet unsuccessful efforts to meet and confer.

       The trial court issued a detailed written tentative ruling, entertained lengthy oral

argument, and issued an oral ruling that adopted and added to the tentative ruling. The

tentative ruling, which did not mention the Hoffman-BD employment requests, relied

principally on Code of Civil Procedure sections 2017.010 and 2017.020,

subdivision (a)13 and was to grant the motion based on the following findings:

       "Hoffman apparently contends that just because his new employer [BD]
       thinks the documents sought [by the relationship requests] are secret, he
       may lawfully resist discovery. . . . Not so. The court finds that Quidel has
       requested documents which are or may lead to admissible evidence, and


13      "Unless otherwise limited by order of the court in accordance with this title, any
party may obtain discovery regarding any matter, not privileged, that is relevant to the
subject matter involved in the pending action or to the determination of any motion made
in that action, if the matter either is itself admissible in evidence or appears reasonably
calculated to lead to the discovery of admissible evidence. . . ." (Code Civ. Proc.,
§ 2017.010.)
        "The court shall limit the scope of discovery if it determines that the burden,
expense, or intrusiveness of that discovery clearly outweighs the likelihood that the
information sought will lead to the discovery of admissible evidence. . . ." (Code Civ.
Proc., § 2017.020, subd. (a).)

                                              9
       that Quidel has otherwise justified the demands in question. There is
       already a protective order in place which forbids misuse of the discovered
       documents."

In the tentative ruling, the court also awarded Quidel $4,000 in sanctions against

Hoffman and his attorneys. At the hearing, Hoffman strenuously argued against the

above-quoted tentative ruling, emphasizing that the Quidel relationship requests called

for information belonging to BD, not to Hoffman.14 Based on the written and oral

presentation described ante, the court indicated its intention to grant the motion,

explaining to Hoffman's counsel:

       "What you're trying to do, it strikes me, is engraft onto a breach of contract
       case the kind of discovery protections that the legislature felt were
       appropriate in trade secret litigation. [Quidel] didn't sue your client for
       violating trade secrets. It's a straight breach of contract [complaint]. [¶]
       The jury instructions are right in CACI. They're very straightforward.
       They're well-established theories of law. And you want me to essentially
       sustain your objections, which would raise a breach of contract case to
       something that it's not, a trade secret case. [Quidel] didn't sue you[r client]
       for breach of trade secret violations."

With regard to the BD-Hoffman employment requests, the court acknowledged that its

tentative ruling failed to discuss them and entertained additional argument. The court

then confirmed its tentative ruling on all issues, adding that "the compensation

information [be] provided, but . . . allowing the specific dollar amount of the salary

information to be redacted."15 The August 8 Order required Hoffman to provide



14     Again, Hoffman did not mention section 1060 or rely on authorities applying the
trade secret privilege.

15      The exhibits Hoffman provided us in this writ proceeding contain only the
tentative ruling dated August 5, 2014, and the reporter's transcript from the hearing on
                                             10
amended verified responses within 10 days, to produce responsive documents within 20

days, and to pay sanctions of $4,000 within 10 days.

      C.     Quidel Seeks Discovery from Nonparty BD16

      In February 2014 — which was during the Quidel-Hoffman meet and confer

process but before Quidel filed its motion to compel — Quidel served a subpoena on BD

seeking production of certain business records related to Hoffman and Quidel. BD

served written responses, including objections to producing "private, privileged, and

confidential commercial, financial, and/or proprietary business information."

      After Quidel and BD met and conferred concerning the requests and objections

and the limited documents produced, Quidel filed a motion to compel BD to produce

additional documents. This motion was fully briefed and set to be heard on August 15,

2014, one week after the hearing on Quidel's motion directed to Hoffman to compel

further discovery responses. Although BD's opposition did contain specific arguments




August 8, 2014, in which the court adopted the tentative ruling with the additional oral
ruling on the Hoffman-BD employment requests. We will refer to the August 5 tentative
ruling together with the oral ruling on the Hoffman-BD employment requests as the
"August 5 Order."

16     On our own motion, we take judicial notice of our nonpublished opinion in
Becton, Dickinson and Co. v. Superior Court (Oct. 7, 2014, D066518) (BD opinion) as
well as the files and records in the matter (No. D066518). (Evid. Code, §§ 452,
subds. (a), (d)(1), 459; McClintock v. West (2013) 219 Cal.App.4th 540, 543, fn. 2
[judicial notice taken of nonpublished opinion]; Jay v. Mahaffey (2013) 218 Cal.App.4th
1522, 1529, fn. 7 ["Judicial notice may be granted if the documents for which notice is
sought are at least minimally relevant to the instant appeal."].)

                                            11
directed to trade secrets and cited authority expressly applicable to the trade secret

privilege found in section 1060, it did not cite or mention section 1060.

       The day before the hearing on Quidel's motion directed to BD, BD filed a motion

for a protective order for which it sought protection from having to disclose "highly

confidential trade secrets, proprietary information, and confidential information." In

support of this motion, for the first time, section 1060 was brought to the court's attention.

       Prior to the August 15, 2014 hearing on Quidel's motion to enforce its subpoena,

the court issued a tentative ruling consistent with its final ruling the week before on

Quidel's motion directed to Hoffman's responses. At the hearing, BD's counsel suggested

that Quidel's subpoena called for the production of BD's "confidential and trade-secret

documents" and that there were special procedural protections for discovery in cases that

involve trade secrets. The court responded:

       "This is a breach-of-contract case, sir. [¶] . . . [¶]

       "[Code of Civil Procedure section 2019.21017 d]oesn't apply, sir. It doesn't
       apply. It's not a trade-secret case. They have not filed a complaint
       invoking that Section 2019[.210] construct. I had this conversation just last
       week [at the hearing on Quidel's motion directed to Hoffman]; okay? And I
       thought I made my thoughts on that subject quite clear, that you can't
       [e]ngraft that whole construct on a straight-up breach-of-contract case."




17     "In any action alleging the misappropriation of a trade secret under the Uniform
Trade Secrets Act . . . , before commencing discovery relating to the trade secret, the
party alleging the misappropriation shall identify the trade secret with reasonable
particularity subject to any orders that may be appropriate under Section 3426.5 of the
Civil Code." (Code Civ. Proc., § 2019.210.)

                                              12
The court expressly declined to delay ruling on Quidel's motion in order to first consider

BD's motion for a protective order. Following argument, again relying on the relevance

standard of Code of Civil Procedure section 2017.010 (see fn. 13, ante), the court

confirmed its tentative ruling with modifications related only to redacting Hoffman's

salary, requiring BD to produce the responsive documents within two weeks.

       D.     The Parallel Writ Proceedings

       Prior to the expiration of the 20-day period in which Hoffman was required to

produce the responsive documents, on August 22, 2014, he initiated the instant

proceeding by filing a petition for writ of mandate directing the respondent court to set

aside the August 8 Order and seeking an immediate stay of the August 8 Order. With

regard to the Quidel relationship requests, Hoffman argues that by having to produce the

requested documents, he necessarily will disclose BD's confidential proprietary

information, including trades secrets,18 in violation of his employment agreement with

BD.19 With regard to the Hoffman-BD employment requests, Hoffman argues that by



18     Although Hoffman has consistently argued that the responsive documents contain
confidential and proprietary information, in his writ petition Hoffman relies on
section 1060 and cases that apply the trade secret privilege in his writ petition for the first
time.

19     Hoffman tells us that as part of his employment agreement with BD he promised:
"I agree not to . . . disclose, either during my employment or thereafter, any confidential,
proprietary, non-public information, whether of a technical or non-technical nature, about
the business, technology, products, and/or customers of [BD], or about my activities as an
employee of [BD], which was obtained or acquired by me during the term of my
employment with [BD] ('Confidential Information'), unless authorized beforehand in
writing by [BD] . . . ." Hoffman also relies on a letter to his attorney from BD's attorneys
in which they "remind Mr. Hoffman of his confidentiality obligations" quoted above and
                                              13
producing the requested documents his "constitutional right to privacy" will be

violated.20 On August 26, 2014, we issued a stay of the August 8 Order; Quidel was

invited to and did submit an informal response to the petition; on September 12, 2014, we

issued an order to show cause why the requested relief should not be granted; Quidel

filed a formal return; Hoffman filed a reply to the return; and the matter was orally

argued in February 2015.

       Meanwhile, prior to the expiration of the two-week period in which BD was

required to produce responsive documents, on August 26, 2014, BD filed a petition for

writ of mandate directing the respondent court to set aside its order directing the

production of the subpoenaed documents and seeking an immediate stay of the order.

This is the proceeding of which we have taken judicial notice, No. D066518. (See fn. 16,

ante.) On October 7, 2014, we issued a writ of mandate directing the trial court to stay its

order directing BD to produce documents until after the court hears and decides what was

then BD's pending motion for a protective order. (BD opinion, supra.) In our opinion,

we noted the trial court's error in concluding that trade secrets were not at issue in

Quidel's one cause of action against Hoffman for breach of contract. (Ibid. [application


advise Hoffman of their "belie[f] there is a substantial risk that Mr. Hoffman's production
of many of the requested records would violate the terms of his agreement with BD."

20      Although Hoffman does not tell us on which provision(s) of which Constitution[s]
he relies, we have assumed it is article I, section 1 of the California Constitution, which
provides: "All people are by nature free and independent and have inalienable rights.
Among these are enjoying and defending life and liberty, acquiring, possessing, and
protecting property, and pursuing and obtaining safety, happiness, and privacy." (Italics
added.)

                                              14
of the trade secret privilege "is not determined based on the claims asserted by the

plaintiff"].)

       We now turn to resolving the issues raised in Hoffman's writ petition.

                                              II.

                                        DISCUSSION

A.     Quidel Relationship Requests

       In determining whether to allow discovery of confidential proprietary information,

the trial court is required to conduct a balancing test (which we discuss in greater detail,

post). (Hofmann Corp., supra, 172 Cal.App.3d at pp. 362-363 [customer list];

Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1393

(Bridgestone) [trade secret].) We review the court's application of this balancing test for

an abuse of discretion. (Hofmann Corp., at p. 362.) As a general rule, a trial court abuses

its discretion only when, in its exercise, it " 'exceeds the bounds of reason, all of the

circumstances before it being considered.' " (Denham v. Superior Court (1970) 2 Cal.3d

557, 566 (Denham).) In addition, as applicable here, "[a] trial court abuses its discretion

when it applies the wrong legal standards applicable to the issue at hand." (Paterno v.

State of California (1999) 74 Cal.App.4th 68, 85 (Paterno); see Platypus Wear, Inc. v.

Goldberg (2008) 166 Cal.App.4th 772, 782 [abuse of discretion where court "erred in

acting on a mistaken view about the scope of its discretion"].)

       Here, the court granted Quidel's motion based entirely and exclusively on Code of

Civil Procedure sections 2017.010 and 2017.020, subdivision (a). Together, they

establish generally that "any matter, not privileged, that is relevant to the subject matter

                                              15
involved in the pending action" is discoverable (Code Civ. Proc., § 2017.010, italics

added), subject to limitation if the court "determines that the burden, expense, or

intrusiveness of that discovery clearly outweighs the likelihood that the information

sought will lead to the discovery of admissible evidence" (Code Civ. Proc., § 2017.020,

subd. (a)). Code of Civil Procedure section 2017.010 describes a matter as "relevant" if

"the matter either is itself admissible in evidence or appears reasonably calculated to lead

to the discovery of admissible evidence."

       As previewed ante, section 1060 creates a privilege for trade secrets and

authorizes the owner of a trade secret to refuse to disclose the secret "if the allowance of

the privilege will not tend to conceal fraud or otherwise work injustice." (Ibid.) In an

opinion applying section 1060 in the context of civil discovery, the court held that

disclosure of a trade secret cannot be required simply because the requested information

is discoverable under the general standard for discovery of matter that " 'appears

reasonably calculated to lead to the discovery of admissible evidence.' " (Bridgestone,

supra, 7 Cal.App.4th at p. 1390, quoting from Code Civ. Proc., former § 2017, subd. (a).)

This broad standard, now found in Code of Civil Procedure section 2017.010,21 applies

only to matters that are not privileged. (Bridgestone, at pp. 1390-1391.)

       Section 1060 requires a trial court to apply a heightened standard before

compelling the disclosure of documents containing trade secrets. (Bridgestone, supra, 7


21    Code of Civil Procedure section 2017.010 continues former section 2017,
subdivision (a) without substantive change. (Cal. Law Revision Com. com., 21 West's
Ann. Code Civ. Proc. (2007 ed.) foll. § 2017.010, p. 523.)

                                             16
Cal.App.4th at p. 1393.) Under this standard, the party claiming the privilege must first

establish the information sought is privileged. (Ibid.) If it does, then the "party seeking

discovery must make a prima facie, particularized showing that the information sought is

relevant and necessary to the proof of, or defense against, a material element of one or

more causes of action presented in the case, and that it is reasonable to conclude that the

information sought is essential to a fair resolution of the lawsuit." (Ibid.) If that showing

is made, the burden shifts to "the holder of the privilege to demonstrate any claimed

disadvantages of a protective order." (Ibid.)

       In this writ proceeding, although Hoffman relies on section 1060 and Bridgestone,

supra, 7 Cal.App.4th 1384, he did not bring either authority to the attention of the trial

court and, indeed, argued only that the requested documents were not relevant under

Code of Civil Procedure section 2017.010 (the principal statute on which the court based

its ruling). That said, Hoffman did argue that because Quidel's requests called for the

production of confidential and proprietary information of BD, Quidel was required to

make a stronger showing of the need (as opposed to mere relevance under Code Civ.

Proc., § 2017.010) for the requested discovery. In support of this argument, Hoffman

cited Hofmann Corp., supra, 172 Cal.App.3d 357, a case expressly dealing with

documents "guarded as a proprietary matter by [the defendant]." (Id. at p. 360.) The

Hofmann Corp. court ruled that, because "a limited protection is given to sensitive

information which people may wish to keep confidential," the trial court erred in not

applying a balancing test that considered " ' "the purpose of the information sought, the

effect that disclosure will have on the parties and on the trial, the nature of the objections

                                              17
urged by the party resisting disclosure, and ability of the court to make an alternative

order which may grant partial disclosure, disclosure in another form, or disclosure only in

the event that the party seeking the information undertakes certain specified burdens

which appear just under the circumstances . . . ." (Greyhound Corp. v. Superior Court

(1961) 56 Cal.2d 355, 382-385.)' " (Hofmann Corp., at p. 362.) Of note, Hofmann Corp.

did not mention section 1060, even though on remand the court was required to apply a

balancing test — not merely determine relevance — before the "sensitive information"

consisting of trade secrets could be ordered disclosed. (Hofmann Corp., at p. 362.) For

this reason, we do not deem Hoffman to have forfeited his right to have the trial court

conduct an appropriate balancing test, and Quidel does not argue otherwise.

       Once Hoffman asserted that the production of responsive documents necessarily

contained BD's confidential and proprietary information, the trial court was required to

— but did not — determine whether such confidential or proprietary information would

be disclosed by Hoffman's production of responsive documents.22 (Hofmann Corp.,

supra, 172 Cal.App.3d at p. 362; Bridgestone, supra, 7 Cal.App.4th at p. 1393.) If so,

then the court could compel disclosure only after conducting the requisite balancing test,

depending on the court's findings as to the existence of confidential, proprietary or trade

secret information contained in the responsive documents. (Hofmann Corp., at p. 362;

Bridgestone, at p. 1393.) Here, rather than considering the evidence presented,


22     While we express no opinion on the ultimate determination, we note that in its
return in this proceeding, Quidel argues that its requests do not call for the production of
BD's proprietary information.

                                             18
determining whether BD's confidential or proprietary or trade secret information would

be disclosed, and if so then balancing the various factors as required where such

information is affected, the court erroneously limited its consideration to the substantive

cause of action (breach of contract) and applied the general standard for discovery under

Code of Civil Procedure sections 2017.010 and 2017.020, subdivision (a). In so doing,

the court abused its discretion. (Paterno, supra, 74 Cal.App.4th at p. 85 ["A trial court

abuses its discretion when it applies the wrong legal standards applicable to the issue at

hand."]; Dyer v. Department of Motor Vehicles (2008) 163 Cal.App.4th 161, 174 [same].)

       Accordingly, we direct the trial court to set aside that part of the August 8 Order

directing Hoffman to produce documents responsive to Quidel's relationship requests,

along with the related award of $4,000 in sanctions. On remand, the court is to

reconsider Quidel's motion under the appropriate standard and consistent with the views

expressed herein.23

       B.     Hoffman-BD Employment Requests

       With regard to the Hoffman-BD employment requests, Hoffman contends that the

August 8 Order requires him to produce documents concerning his "private financial

information" (other than his salary, which may be redacted). Concerning production of a


23     We state no opinion as to the outcome on reconsideration. The court should first
determine whether confidential or proprietary or trade secret information is implicated in
Hoffman's responses. If so, then the court should exercise its discretion in determining
whether, and if so under what conditions, the documents should be produced depending
on the type(s) of information that will be disclosed — given the standards in Hofmann
Corp., supra, 172 Cal.App.3d 357, 362, and Bridgestone, supra, 7 Cal.App.4th 1384,
1393.

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party's private financial information, Moskowitz v. Superior Court (1982) 137 Cal.App.3d

313 teaches:

       "Personal financial information comes within the zone of privacy protected
       by article I, section 1 of the California Constitution. . . . The constitutional
       right of privacy is not absolute; it may be abridged to accommodate a
       compelling public interest. . . . One such interest, evidenced by California's
       broad discovery statutes, is ' "the historically important state interest of
       facilitating the ascertainment of truth in connection with legal
       proceedings." ' . . . When an individual's right of privacy in his financial
       affairs conflicts with the public need for discovery in litigation, the
       competing interests must be carefully balanced. . . . Even where the
       balance weighs in favor of disclosure of private information, the scope of
       the disclosure will be narrowly circumscribed; such an invasion of the right
       of privacy ' "must be drawn with narrow specificity" ' and is permitted only
       to the extent necessary for a fair resolution of the lawsuit." (Id. at pp. 315-
       316, fn. and citations omitted.)

We review for an abuse of discretion the trial court's order compelling disclosure of

financial information after balancing the competing interests. (Id. at p. 317.)

       According to Hoffman, the only request affected is No. 28, which seeks

production of documents "that constitute, refer or relate to [Hoffman's] compensation

package at [BD], including the terms of any commissions, bonuses, or incentives that are

part of [Hoffman's] compensation package." In support of his position, Hoffman argues

only that this request is not relevant to Quidel's claim for breach of the Confidentiality

Agreement. In the trial court (and during the meet and confer process that preceded

Quidel's motion), Quidel persuasively argued that Hoffman's compensation package is

"directly relevant to the claims and his defenses in the case" — as it may establish a

motive or incentive for Hoffman to disclose information in violation of the




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Confidentiality Agreement. Given these facts and the exchange during oral argument, we

are satisfied that the trial court carefully balanced the competing interests.

       Accordingly, Hoffman has not met his burden of establishing an abuse of

discretion with regard to the Hoffman-BD employment requests.24

                                       DISPOSITION

       Let a peremptory writ of mandate issue directing the superior court to vacate that

part of its August 8, 2014 order directing Hoffman to produce documents responsive to

Quidel's relationship requests, including the related award of $4,000 in sanctions. The

court is to reconsider Quidel's motion as to the Quidel relationship requests in a manner

consistent with this opinion. In all other respects, the petition is denied. The stay issued

by this court on August 26, 2014 is vacated. In the interests of justice, the parties shall

bear their own costs in this writ proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(B).)



                                                                                    IRION, J.

WE CONCUR:



MCCONNELL, P. J.



BENKE, J.


24     In its return, Quidel did not respond to Hoffman's arguments concerning his right
to privacy related to his compensation package. We do not consider this a concession.
As the petitioner, Hoffman has the burden of establishing an abuse of discretion
(Denham, supra, 2 Cal.3d at p. 566), and Hoffman has not met his burden.
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