Case Name: Cynthia Sewak v. Edward Stahl, et al.

Case No.: 2017-CV-306703

Motion to Compel Depositions and Requests for Monetary Sanctions, or in the Alternative, Evidentiary Sanctions by Defendant Edward Stahl

Factual and Procedural Background

This is an employment case. Defendant Edward Stahl (“Stahl”) is the owner and landlord of property located at 54 N. Santa Cruz Avenue in Los Gatos, California (“Subject Premises”). (Complaint at ¶¶ 2, 12.) Defendant Pharmaca Integrative Pharmacy, Inc. (“Pharmaca”) leased, operated, and managed the Subject Premises owned by defendant Stahl. (Id. at ¶¶ 3, 12.)

In 2009, plaintiff Cynthia Sewak (“Plaintiff”) began working for Pharmaca as a lead pharmacist. (Complaint at ¶ 13.) During her tenure, Plaintiff worked in a building with numerous structural defects including a defective roof, inadequate plumbing, ventilation problems, water leaks, along with fungal and microbial contamination. (Id. at ¶ 14.) Plaintiff complained to defendants about the hazardous working conditions but they declined to take any corrective actions to resolve the problem. (Id. at ¶¶ 16-24.) Ultimately, as a result of the toxic conditions, Plaintiff suffered significant bodily injuries that rendered her disabled and unable to work. (Id. at ¶¶ 4, 26-27.)

On June 16, 2016, defendant Pharmaca terminated Plaintiff. (Complaint at ¶ 30.)

On June 20, 2016, Plaintiff met with Pharmaca’s HR manager and regional manager. (Complaint at ¶ 31.) She was advised that if she did not have documentation from her doctor by the end of the day, they would proceed with her termination. (Ibid.) They also advised her that she had until the end of the day to file for long-term disability benefits. (Ibid.) Due to the short time frame, Plaintiff was unable to provide the requested medical documentation. (Ibid.)

On November 22, 2016, Plaintiff filed a discrimination complaint with the Department of Fair Employment Housing Agency (“DFEH”). (Complaint at ¶ 9.) DFEH thereafter issued Plaintiff with a Notice of Right to Sue. (Ibid.)

On February 23, 2017, Plaintiff filed the operative Complaint alleging causes of action for: (1) negligence; (2) unlawful discrimination based upon disability; (3) failure to provide reasonable accommodation in violation of California Fair Employment and Housing Act (“FEHA”); (4) failure to engage in the interactive process in violation of FEHA; (5) wrongful termination (Tameny Claim); and (6) retaliation.

Discovery Dispute

On April 10, 2019, defendant Stahl personally served deposition subpoenas to: (1) Dennis Miller (“Miller”), an Operations Manager of Associated Air Balance and Certification (“AABC”); and (2) AABC’s Person Most Qualified (“PMQ”). (Joyce Decl. at ¶¶ 15-17, Exs. I-L.) AABC is allegedly the “mold inspector” referred to in Plaintiff’s Complaint. (Id. at ¶ 3.) Defendant Stahl believes Miller is also the PMQ for topics included in the deposition subpoena. (Id. at ¶ 6.) Both subpoenas include a request to produce documents. The depositions were scheduled for May 7, 2019.

On May 6, 2019, Plaintiff’s attorney contacted Miller to confirm whether he would be attending his deposition. (Bossio Decl. at ¶ 11.) According to counsel, Miller told her that he would not be available on May 7, 2019 for deposition due to a time-sensitive job at UCSF and thus requested that deposition be re-set to May 8, 2019. (Id. at ¶ 12.) Plaintiff’s attorney thereafter communicated her conversation with Miller to defendant Stahl’s counsel and recommended that deposition proceed on May 8, 2019. (Id. at ¶¶ 14, 16, Exs. G, I.) Defendant Stahl’s counsel refused to take the deposition off calendar unless he heard directly from Miller about any possible rescheduling. (Id. at ¶ 15, Ex. H.; Joyce Decl. at ¶ 23.)

Since Stahl did not hear from Miller, he proceeded with the depositions on May 7, 2019. (Joyce Decl. at ¶ 23.) Neither Miller nor anyone else from AABC appeared for the depositions. (Ibid.) As a consequence, defendant Stahl served Miller and AABC’s PMQ with notices of nonappearance for deposition. (Id. at ¶ 23, Exs. R-S, U.)

Counsel for defendant Stahl thereafter followed up with Miller who indicated he would be available for deposition between May 21, 2019 and May 24, 2019. (Joyce Decl. at ¶ 25.) Defendant Stahl emailed a copy of the updated subpoenas to Miller ordering him to appear for deposition and produce documents on May 21, 2019. (Id. at 28, Exs. W-Y.) Miller however did not appear for deposition on May 21, 2019 but instead was available on May 28, 2019. (Id. at Ex. Z.) At that point, counsel for defendant Stahl indicated he would move to compel Miller’s deposition unless he agrees to be deposed sometime between June 5, 2019 and June 13, 2019. (Id. at Exs. Z, AA.) Non-party Miller did not respond to the email and thus defendant Stahl now seeks intervention from the Court to resolve this discovery dispute. (Id. at ¶ 30.)

Currently before the Court is the motion to compel depositions of non-party Miller and AABC’s PMQ by defendant Stahl. He also seeks an award of monetary sanctions, or, in the alternative, evidence sanctions against Miller, AABC and Plaintiff. Plaintiff filed written opposition. Neither Miller nor AABC filed written opposition. Defendant Stahl filed reply papers. No trial date has been set.

Motion to Compel Depositions

Defendant Stahl moves to compel the depositions of non-party Miller and AABC’s PMQ for failing to comply with the deposition subpoena by attending, testifying and producing documents at deposition.

Legal Standard

If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court … may 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. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person. (Code Civ. Proc., § 1987.1, subd. (a).)

If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production. (Code Civ. Proc., § 2025.480, subd. (a).)

Motion to Compel Depositions is GRANTED.

Defendant Stahl moves to compel the depositions of non-party Miller and AABC’s PMQ for failing to comply with deposition subpoenas. The moving papers address subpoenas for depositions on May 7, 2019 and May 21, 2019. As an initial matter, there is nothing in the papers demonstrating that subpoenas for deposition on May 21, 2019 were personally served on non-party Miller and AABC’s PMQ. Personal service of any deposition subpoena is effective to require any deponent who is a resident of California at the time of service. (Code Civ. Proc., § 2020.220, subd. (c).) Rather, defendant Stahl contends non-party Miller agreed to be served with the updated deposition subpoenas via email which were later sent to him by regular mail. (Joyce Decl. at ¶¶ 25, 28, Ex. Y.) Defendant Stahl however does not provide any legal authority establishing that service by email and regular mail is permissible with respect to deposition subpoenas. As these deposition subpoenas were not properly served, the Court declines to consider them in support of the motion.

Nevertheless, the subpoenas for deposition on May 7, 2019 were validly served by personal service in accordance with the Code of Civil Procedure. (Joyce Decl. at ¶ 17, Exs. K-L.) And it is undisputed that non-party Miller and AABC’s PMQ did not appear for deposition on that date. Plaintiff does not oppose the motion to compel depositions. Nor have non-party Miller or AABC filed any opposition the motion. Accordingly, the motion to compel depositions is GRANTED.

Request for Monetary Sanctions

Defendant Stahl also seeks an award of monetary sanctions against Plaintiff, her counsel, Miller, and/or AABC.

Legal Standard

Code of Civil Procedure section 1987.2 states that in making an order pursuant to a motion made under 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. Section 2025.480 states the court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds the one subject to the sanction acted with substantial justification or other circumstances make the imposition of the sanction unjust.

The Request for Monetary Sanctions as to Plaintiff and her counsel is DENIED.

With respect to Plaintiff and her counsel, defendant Stahl seeks monetary sanctions on the ground that Plaintiff’s attorney unilaterally rescheduled Miller’s deposition which was initially set for May 7, 2019. Stahl contends such interference caused Miller not to attend his deposition and thus qualifies as a misuse of the discovery process. This contention lacks merit however as Plaintiff did not engage in conduct which prevented Miller from testifying on May 7, 2019. In fact, it is not clear why Miller did not attend deposition on that day unless, as suggested by Plaintiff, he had a time sensitive commitment at UCSF. Regardless, in reviewing the opposition, it appears Plaintiff merely informed defense counsel that Miller would be unavailable and suggested it would be best for all sides to continue the deposition to May 8, 2019. It certainly would have been helpful for Miller to communicate directly with defense counsel regarding his availability for deposition. But, Plaintiff’s correspondence regarding Miller and whether or not he would attend deposition does not rise to the level of any such discovery abuse. Consequently, the request for monetary sanctions against Plaintiff and her counsel is DENIED.

The Request for Monetary Sanctions as to Non-Party Miller and AABC is GRANTED IN PART.

With respect to Miller and AABC, monetary sanctions are warranted as there was no compliance with the deposition subpoena. In addition, there is no written opposition and thus non-party Miller and AABC cannot show they were substantially justified in opposing the motion or that other circumstances exist which make imposing a sanction to be unjust. As explained below, the request for monetary sanctions is GRANTED IN PART.

Counsel for defendant Stahl bills his time at $145 per hour. (Joyce Decl. at ¶ 32.) As a preliminary matter, the Court does not award expenses for meeting and conferring. The Court will award counsel the amount of $1,232.35 for expenses related to the nonappearance by Miller and AABC’s PMQ for deposition on May 7, 2019. (Ibid.) The Court will not award the $125 fee for cancellation of the reporter on May 21, 2019 as the deposition subpoenas for that day were not lawfully served in compliance with the Code of Civil Procedure as stated above. As for time spent on the motion and reply papers, the Court will award $1,220 in monetary sanctions ($145 per hour X 8.0 hours + $60 filing fee). The Court will not award sanctions regarding time spent by attorney Colette Stone as she did not submit her own declaration under penalty of perjury to support her work in relation to the motion. Nor does the Court award anticipated expenses as it may become unnecessary for the parties to attend oral argument if both sides submit on the Court’s tentative order. (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551 [the court awards sanctions only for expenses actually incurred, not for anticipated expenses].)

Request for Evidence Sanctions

Alternatively, defendant Stahl seeks evidentiary sanctions in the form of limiting Plaintiff from introducing evidence originating from AABC or from utilizing anyone associated with AABC as serving as an expert in the matter.

“The trial court has broad discretion in selecting discovery sanctions, subject to reversal only for abuse.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992 (Doppes).) The court should attempt to tailor the sanction to the harm caused by the withheld discovery and cannot impose a sanction as a punishment. (Ibid.)

“The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.” (Doppes, supra, 174 Cal.App.4th at p. 992.) The discovery sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. (Ibid.) “If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse.” (Ibid.)

“The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.” (Code Civ. Proc., § 2023.030, subd. (c).)

As a procedural matter, the moving party must submit a separate statement in support of a request for evidentiary sanctions. (See Cal. Rules of Court, rule 3.1345(a)(7).) Defendant Stahl did not submit a separate statement with his request for evidentiary sanctions. In addition, the conduct by Plaintiff’s counsel with respect to Miller’s deposition does not rise to the level of egregious behavior to warrant evidence sanctions. The mere fact that Plaintiff’s counsel suggested the parties continue the deposition one day to accommodate Miller is hardly enough to impose such sanctions. Nor do such actions constitute any sort of discovery abuse.

Consequently, the request for evidence sanctions is DENIED.

Disposition

The motion to compel non-party Miller and AABC PMQ to attend, testify and produce documents at deposition is GRANTED. Counsel for defendant Stahl and Plaintiff along with non-Party Miller and AABC shall meet and confer on an acceptable date, time, and location for the depositions of Miller and AABC’s PMQ to take place within 30 calendar days of this Order.

The request for monetary sanctions as to Plaintiff and her counsel is DENIED.

The request for monetary sanctions as to non-Party Miller and AABC is GRANTED IN PART. Non-Party Miller and AABC shall pay $2,452.35 in monetary sanctions to counsel for defendant Stahl within 20 calendar days of this Order.

The request for evidence sanctions as to Plaintiff is DENIED.

The Court will prepare the Order.