Case Name: James Englehart v. Seele, Inc., et al.

Case No.: 17CV319854

Plaintiff’s Motion to Compel Depositions and Request for Sanctions

Factual and Procedural Background

Plaintiff James Englehart (“Englehart”) began working for defendant Seele, Inc. (“Seele”) in or around July 8, 2016 as an apprentice journeyman. (Complaint, ¶13.) Seele was contracted to work on the Apple campus II construction project. (Id.) Defendant Seele employed defendant Robert Jeffers (“Jeffers”) as a journeyman iron worker. (Complaint, ¶14.) Plaintiff Englehart and defendant Jeffers were often alone together when they worked on a man lift, sometimes 80 feet in the air. (Complaint, ¶15.)

Beginning July 2016, defendant Jeffers subjected plaintiff Englehart to frequent, ongoing, unwelcome conduct of a sexual nature. (Complaint, ¶16.) Defendant Jeffers criticized plaintiff Englehart’s performance, trying to make plaintiff look bad for rejecting his advances. (Complaint, ¶17.) Supervisors at defendant Seele saw and heard defendant Jeffers’ inappropriate conduct towards plaintiff, but thought it was a joke. (Complaint, ¶18.)

Toward the end of July 2016, plaintiff Englehart approached defendant Seele safety coordinator, Victor Colon (“Colon”), and made a report to him about defendant Jeffers. (Complaint, ¶19.) Plaintiff Englehart met with Colon, foreman Charlie Thomas (“Thomas”), and supervisor Jason Orlic who decided plaintiff would be moved and assigned to a new journeyman. (Complaint, ¶¶20 – 21.) Colon spoke to defendant Jeffers and told him to “quit it” because he was offending people. (Complaint, ¶22.) For the next few days, plaintiff only saw defendant Jeffers at lunch and defendant Jeffers did not engage in any offensive conduct. (Id.) Soon afterwards, defendant Jeffers tried to get plaintiff Englehart fired. (Complaint, ¶23.) Defendant Jeffers continued engaging in inappropriate sexual conduct and making inappropriate sexual comments toward plaintiff Englehart. (Complaint, ¶¶25 – 30.)

In or around mid-August [2016], plaintiff Englehart went to foreman Thomas’ office to again complaining about defendant Jeffers and demanding defendant Jeffers be terminated. (Complaint, ¶31.) Thomas moved plaintiff Englehart to a different crew. (Id.) Two days later, plaintiff Englehart explained about Jeffers’ conduct to an individual named Nico, believed to be head of Seele’s America Operations. (Complaint, ¶¶32 – 33.) Nico told plaintiff Englehart he would be transferred to a fitness center job site, one half mile away. (Complaint, ¶33.) Plaintiff Englehart believes he was improperly transferred to a different union. (Complaint, ¶34.) Plaintiff Englehart’s job duties changed and he became a “gopher” for the glazers who worked at the fitness center. (Id.) Plaintiff questioned Thomas about the apparent demotion and Thomas stated it was because everyone loved defendant Jeffers and Jeffers was terminated. (Complaint, ¶35.) On or about August 28, 2016, plaintiff Englehart emailed Thomas describing his complaints of harassment and retaliation. (Complaint, ¶36.) Plaintiff Englehart stated he lost overtime payments as a result of complaining and requested the union contract be honored and he be returned to the Apple worksite. (Id.) Nico responded by telling plaintiff to return to work and not to complain any further. (Complaint, ¶¶37 – 38.)

After returning to work at the fitness center, plaintiff Englehart took a day off to visit a doctor regarding a previous medical condition. (Complaint, ¶39.) Plaintiff’s supervisor required plaintiff show his appointment paperwork and inquired about the cause of the medical condition to which plaintiff responded that second hand smoke was the primary cause. (Id.) Later that week, a supervisor stood next to plaintiff during a safety meeting and smoked a cigarette. (Complaint, ¶40.) At a break, the same supervisor again came up to plaintiff and smoked a cigarette next to him while plaintiff was seated in a designated non-smoking area. (Id.) Plaintiff complained to Seele’s safety coordinator. (Id.) On a third occasion, the same supervisor sat next to plaintiff and smoked a cigarette while plaintiff was eating lunch. (Complaint, ¶41.) Plaintiff again complained. (Id.) Later that day, Seele laid off plaintiff Englehart. (Complaint, ¶42.)

On November 30, 2017, plaintiff Englehart filed a complaint against defendants Seele and Jeffers asserting causes of action for:

(1) Sexual Harassment
(2) Failure to Take Steps to Prevent and/or Correct Harassment, Discrimination, and Retaliation
(3) Retaliation
(4) Wrongful Termination in Violation of Public Policy
(5) Assault
(6) Battery

On February 6, 2018, defendant Seele filed (1) a demurrer to the fifth and sixth cause of action of the complaint; and (2) a motion to strike portions of the complaint. On April 26, 2018, the court overruled defendant Seele’s demurrer and denied defendant Seele’s motion to strike.

On May 22, 2018, defendant Seele filed an answer to plaintiff Englehart’s complaint.

On June 26, 2018, defendant Robert Jefferis (erroneously sued as Jeffers) filed a general denial to plaintiff Englehart’s complaint.

Discovery Dispute

On September 19, 2018, plaintiff Englehart served defendant Seele with an amended notice of videotaped deposition of Seele’s person most knowledgeable (“PMK”), and request for production of documents, to take place on November 7, 2018 at Pacific Workplaces, 111 North Market Street, Suite 300, San Jose, CA 95113.

Defendant Seele objected and refused to produce a PMK in San Jose stating Seele does not have an office in California.

Plaintiff Englehart’s counsel met and conferred with defendant Seele’s counsel, but were unable to reach a resolution with regard to the deposition of defendant Seele’s PMK.

On June 11, 2018, defendant Seele served plaintiff Englehart with a notice of deposition for its former employee, Jason Orlic (“Orlic”), to take place on June 22, 2018 in San Jose. Plaintiff Englehart’s counsel attended Orlic’s deposition on June 22, 2018 at which time defendant Seele’s counsel indicated he represented Orlic for purposes of the deposition but his representation would end when Orlic relocated out of the state that week.

On or about June 28, 2018, plaintiff Englehart attempted to serve defendant Seele’s counsel with a deposition subpoena for Orlic, but was unable to do so because defendant Seele’s counsel’s office was closed. In subsequent communications, defendant Seele’s counsel indicated his representation of Orlic ended on June 26, 2018 and he “cannot accept a subpoena on [Orlic’s] behalf.” Plaintiff Englehart’s counsel asked defendant Seele’s counsel if he could assist in coordinating the completion of Orlic’s deposition which plaintiff’s counsel offered to do electronically.

On November 5, 2018, plaintiff Englehart again served defendant Seele with a deposition subpoena for Orlic.

I. Plaintiff’s motion to compel depositions is GRANTED, in part, and DENIED, in part.

A. PMK.

Code of Civil Procedure section 2025.250 states:

(a) Unless the court orders otherwise under Section 2025.260, the deposition of a natural person, whether or not a party to the action, shall be taken at a place that is, at the option of the party giving notice of the deposition, either within 75 miles of the deponent’s residence, or within the county where the action is pending and within 150 miles of the deponent’s residence.
(b) The deposition of an organization that is a party to the action shall be taken at a place that is, at the option of the party giving notice of the deposition, either within 75 miles of the organization’s principal executive or business office in California, or within the county where the action is pending and within 150 miles of that office.
(c) Unless the organization consents to a more distant place, the deposition of any other organization shall be taken within 75 miles of the organization’s principal executive or business office in California.
(d) If an organization has not designated a principal executive or business office in California, the deposition shall be taken at a place that is, at the option of the party giving notice of the deposition, either within the county where the action is pending, or within 75 miles of any executive or business office in California of the organization.

(Emphasis added.)

Plaintiff Englehart contends subdivision (d) of Code of Civil Procedure section 2025.250 applies because the deposition notice is directed at a party who is an organization and so a deposition occurring within the county of Santa Clara is proper. Defendant Seele, on the other hand, contends subdivision (a) of that same section applies because the PMK is a natural person and so a deposition must be within 75 miles of the PMK’s residence which is in New York.

“A corporation or other entity must designate its ‘most qualified’ officers or agents to testify on its behalf (CCP §2025.230, ¶8:473). It is an open question whether the designated agent who resides outside the state can be compelled to attend in the state on the theory it is the entity’s deposition that is being taken. That issue was expressly not addressed in Toyota Motor Corp. v. Sup. Ct., supra. [Toyota Motor Corp. v. Sup. Ct. (Stewart), supra, 197 CA4th at 1125…]” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶8:631.1, p. 8E-63.)

Defendant Seele argues it cannot be deposed in Santa Clara based on the holding in Toyota Motor Corporation v. Superior Court (2011) 197 Cal.App.4th 1107 (Toyota). In Toyota, the plaintiffs noticed the deposition of five specifically named Toyota employees as individuals and not as corporate representatives. (Id. at p. 1110.) As natural persons, the employees could be deposed within 75 miles of their residences in Japan or in the county where the action was pending and within 150 miles of their residences. (Id. at p. 1110, fn. 2, citing Code Civ. Proc., § 2025.250, subd. (a).) The plaintiffs moved to compel the employees’ appearance for deposition in California pursuant to Code of Civil Procedure section 2025.260 because California was more distant than the locations authorized by section 2025.250, subdivision (a). (See id. at pp. 1113-14.) The Court held the nonresident employees could not be compelled to appear for deposition in California because a court’s discretion to compel appearance at a deposition more distant than the location authorized by section 2025.250 is circumscribed by section 1989, which excuses a witness from appearing to testify if the witness was not a California resident at the time he or she was served with a subpoena. (Id. at p. 1113.) In holding section 1989 limits a court’s discretion to compel a nonresident deponent’s appearance for deposition in California, the Court of Appeal concluded section 1989 applied both to witnesses subpoenaed to testify at trial and to individually named witnesses required to appear for deposition. (Ibid.)

Defendant Seele attempts to invoke Toyota based on its assertion that its deposition constitutes the deposition of a natural person and is therefore governed by section 2025.250, subdivision (a). Unlike the plaintiffs in Toyota, plaintiff Englehart did not notice the depositions of specifically named employees in their individual capacities. Plaintiff Englehart named Seele, a corporation, as the deponent.

This distinction is reflected in Toyota because when the Court of Appeal concluded section 1989 applied when a party noticed the depositions of specifically named employees in their individual capacities, including officers and executives, it explicitly stated: “We express no opinion, however, as to whether our analysis or the conclusions we have reached in this opinion would or should extend or apply to a court order made pursuant to section 2025.230 which provides for the circumstance where ‘[ ] the deponent named is not a natural person. . . .’” (Id. at p. 1125, fn. 20.)

The argument advanced by defendant Seele is untenable when carried to its logical conclusion. “Courts should give meaning to every word of a statute if possible, and should avoid a construction making any word surplusage.” (Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 22.) Defendant Seele’s interpretation of what constitutes the deposition of a natural person would render section 2025.250, subdivision (b) through (d) surplusage because the essence of its interpretation is that all depositions of organizations are depositions of natural persons, due to the fact that organizations must designate a PMK. The Court rejects this argument. Defendant Seele’s deposition does not constitute the deposition of a natural person and section 2025.250, subdivision (a) therefore does not apply.

Given the Court of Appeal expressly declined to extend its holding to depositions of organizations noticed pursuant to section 2025.230, the Court is unable to see how Toyota applies. A “‘court’s role is to harmonize the law.’ [Citations.]” (Apartment Assoc. of Los Angeles County v. City of Los Angeles (2009) 173 Cal.App.4th 13, 21.) A court should “presume that the Legislature, when enacting a statute, was aware of existing related laws and intended to maintain a consistent body of rules.” (Id. at p. 22, citing Stone Street Capital, LLC v. California State Lottery Commission (2008) 165 Cal.App.4th 109, 118.)

Section 1989 excuses a nonresident witness from appearing to testify pursuant to a subpoena, but section 2025.250, subdivision (d) contains no such similar language. While section 2025.250, subdivisions (a) through (c) authorize a deposition to be taken in the county where the action is pending so long as the deponent lives within 150 miles, subdivision (d) does not tether the permissible location to the deponent’s residence. Subdivision (d) simply authorizes the party noticing the deposition to elect to depose an organization in the county where the action is pending. Importing the residency limitation in section 1989 would be inconsistent with the express language of section 2025.250, subdivision (d). The Court therefore will not adopt such an interpretation, and declines to extend the holding in Toyota to the facts of the present case. Defendant Seele’s objection and argument in opposition therefore lack merit. Accordingly, plaintiff Englehart may depose defendant Seele within Santa Clara County.

Plaintiff’s motion to compel the deposition of Seele’s PMK is GRANTED. Within 30 calendar days of this order, at a date and time mutually agreed upon by the parties, defendant Seele shall appear for deposition through its PMK at Pacific Workplaces, 111 North Market Street, Suite 300, San Jose, CA 95113.

B. Orlic.

By plaintiff Englehart’s own acknowledgment, Orlic is no longer an employee of defendant Seele and is a non-California resident. “If the deponent is not a party to the action or an officer, director, managing agent, or employee of a party, a party serving a deposition notice under this section shall use any process and procedures required and available under the laws of the state, territory, or insular possession where the deposition is to be taken to compel the deponent to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection, copying, testing, sampling, and any related activity.” (Code Civ. Proc., §2026.010, subd. (c).)

The plain language of this statute requires plaintiff Englehart to use any process required and available under the laws of the state of South Carolina to compel the deposition of Orlic who is not a party or California resident. The fact that Seele’s counsel defended Orlic’s deposition while he was still employed with Seele does not confer authority on this court to compel Orlic’s attendance which, pursuant to Code of Civil Procedure section 2026.010, subdivision (c), rests with the state [South Carolina] where the deposition is to be taken.

Accordingly, plaintiff Englehart’s motion to compel the deposition of Orlic is DENIED.

C. Sanctions.

If a motion to compel a deponent’s attendance is granted, “the court shall impose a monetary sanction … in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., §2025.450, subd. (g).) Here, although plaintiff prevailed in compelling the attendance of defendant Seele’s PMK at deposition, the court declines to award sanctions. Defendant Seele acted with substantial justification in light of the unsettled legal authority on this issue. Plaintiff Englehart’s request for monetary sanctions is DENIED.

Code of Civil Procedure section 2025.040, subdivision (g) authorizes monetary sanctions if a party moving to compel attendance prevails, but does not authorize monetary sanctions should the opposing party prevail. For that reason and in recognition of the unsettled legal authority, defendant Seele’s request for monetary sanctions is DENIED.

Calendar line 9

– oo0oo –