Case Name: Gregory Steshenko v. De Anza College, et al.

Case No.: 2017-CV-317602

Motions to Compel Compliance with Subpoenas by Plaintiff Gregory Steshenko

Factual and Procedural Background

This is an action involving age discrimination and violation of constitutional rights. In 2016, plaintiff Gregory Steshenko (“Plaintiff”) (self-represented), 57 years old, completed a phlebotomy training program and obtained a phlebotomist state license, the prerequisite for admission to the Medical Laboratory Technician (“MLT”) program. (See Third Amended Complaint [“TAC”] at ¶ 20.) Plaintiff thereafter enrolled in the MLT program at De Anza College. (Ibid.)

After Plaintiff started the program, defendant Patricia Buchner (“Buchner”) notified him that he needed to complete an “externship” at a clinical agency in order to graduate from the program. (TAC at ¶¶ 22, 28.) The school was responsible for providing students with a list of the clinical agencies that might accept them for externship. (Id. at ¶ 28.) Thereafter, the burden is on the student to find a clinical site willing to accept them. (Ibid.) Placement for the externship is a competitive process and the college has no control over the externship sites. (Ibid.)

Defendant Buchner sent Plaintiff to three different interviews with clinical agencies in order to fulfill the externship requirement. (See TAC at ¶¶ 30, 33, 38.) Following the first two interviews, the clinical agencies rejected Plaintiff because of his age and they were seeking an experienced phlebotomist. (Id. at ¶¶ 30, 31, 33, 34.) During the third interview, the agency director suggested that Plaintiff’s age is not suitable for an MLT role and thus he should apply for a Senior Information Technology position. (Id. at ¶ 38.) Thereafter, the clinical agency rejected Plaintiff’s candidacy and a younger person was assigned to the externship. (Id. at ¶ 39.)

Following the interviews, Plaintiff complained to defendants about the age discrimination he was subjected to. (TAC at ¶ 40.) In doing so, Plaintiff expressed his doubt that he would ever be able to secure an “externship” and graduate from the program because of it. (Ibid.) In response, defendant Buchner informed Plaintiff that she has “no other clinical sites taking students.” (Ibid.)

Plaintiff’s training was sponsored by the County of Santa Cruz. (TAC at ¶ 41.) Since Plaintiff cannot graduate from the program in a timely manner, he lost the sponsorship and no longer has the means to subsist through six months of unpaid work. (Ibid.) Thus, because of his age and lack of experience in phlebotomy, Plaintiff is unable to graduate from the program, apply for the state license and enter the job market. (Id. at ¶ 42.)

On August 10, 2017, Plaintiff filed a timely administrative claim with De Anza College for age discrimination and unlawful operation of the MLT program. (TAC at ¶ 17.) There was no response by De Anza College. (Ibid.)

On August 15, 2017, Plaintiff filed an age discrimination complaint against De Anza College with the Office for Civil Rights (“OCR”) of the US Department of Education. (TAC at ¶ 18.) OCR declined to pursue the complaint because Plaintiff already filed a complaint with the college. (Ibid.) Plaintiff therefore has exhausted his administrative remedies. (Id. at ¶ 19.)

On April 11, 2019, Plaintiff filed a TAC against defendants Foothill-De Anza Community College District (erroneously sued as De Anza College), Patricia Buchner, Anita Muthy Ala-Kandula and Lorrie Ranck (collectively, “Defendants”) alleging causes of action for: (1) age discrimination; (2) violation of constitutional equal protections; (3) violation of due process guarantee; (4) violation of constitutional right to free public education; (5) violation of California Labor Laws; (6) breach of contract; (7) intentional infliction of emotional distress; (8) unfair business practices; and (9) taxpayer claim (violation of Code Civ. Proc., § 526a).

Defendants thereafter filed a demurrer and motion to strike to the TAC. The demurrer was sustained in part and overruled in part. The Court also, on its own motion, struck the second, third, fourth, eighth, and ninth causes of action. In addition, the Court granted the motion to strike the prayer for punitive damages. Therefore, only the first, sixth, and seventh causes of action remain in this case.

Discovery Dispute

In May 2019, Plaintiff served subpoenas for production of business records on the following entities: (1) Natividad Medical Center (“Natividad”); (2) Community Hospital of the Monterey Peninsula (“CHOMP”); and (3) Spectra Laboratories (“Spectra”). (Plaintiff’s Decl. at ¶ 3.)

On June 10, 2019, Defendants, on behalf of the nonparty entities, filed a motion to quash the subpoenas. According to Defendants, the filing of the motion absolves the nonparties of complying with the subpoenas unless and until the Court denies the motion and orders the nonparties to respond.

In July 2019, Plaintiff filed motions compelling the nonparties to comply with the subpoenas.

The motion to quash came on for hearing on October 3, 2019. On that day, the Court (Hon. Zayner) denied the motion to quash and ordered documents to be produced on or before October 31, 2019. Given this ruling, the Court continued the motions to compel compliance to November 19, 2019.

Motions to Compel Compliance with Subpoenas

Currently before the Court are Plaintiff’s motions to compel compliance with subpoenas for production of business records. Nonparties CHOMP and Spectra filed written opposition. Plaintiff filed reply papers. No trial date has been set.

Legal Standard

If a subpoena requires the production of books, documents, or other things, 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. (Code Civ. Proc., § 1987.1, subd. (a).) In addition, the court may make any other orders as may be appropriate to protect against unreasonable or oppressive demands. (Ibid.)

Subpoena for Nonparty Natividad

The motion to compel compliance with production of business records with respect to non-party Natividad is unopposed and GRANTED.

Subpoena for Nonparty CHOMP

Plaintiff also moves nonparty CHOMP to comply with the subpoena and produce business records. In opposition, counsel for CHOMP indicates that, following the denial of the motion to quash, it has produced documents in response to the subpoena issued on May 9, 2019. Counsel has attached a signed declaration from the custodian of records showing that responsive documents were served via fed ex on October 29, 2019. (See OPP at Ex. A.)

Accordingly, the motion to compel compliance with production of business records is MOOT.

Subpoena for Nonparty Spectra

Finally, Plaintiff moves nonparty Spectra to comply with the subpoena and produce business records.

Spectra first argues the motion to compel compliance is moot because Plaintiff served a second deposition subpoena for production of business records on August 5, 2019. Spectra thus claims this second notice supersedes the first notice issued on May 9, 2019. This argument however is not persuasive as Plaintiff only seeks to enforce the subpoena issued on May 9, 2019. Therefore, for purposes of this motion, the Court will not consider the deposition subpoena served on August 5, 2019.

In addition, Spectra filed objections to both subpoenas on October 29, 2019 claiming they are vague, ambiguous, overbroad, and violate privacy rights of third parties. (Fujikawa Decl. at ¶ 5, Ex. C.) But, as stated above, the Court has already ordered, on October 3, 2019, that Spectra and the other nonparty entities produce business records in compliance with the subpoenas. Having done so, the Court declines to consider the objections with respect to the May 9, 2019 subpoena. The objections however are preserved with respect to the deposition subpoena served on August 5, 2019.

Finally, Spectra contends it has produced 68 pages of relevant documents related to Plaintiff’s application to the externship in response to the subpoena. (Fujikawa Decl. at ¶ 5.) The subpoena however seeks documents related to the MLT program conducted on Spectra’s premises. It is not clear if this production from Spectra encompasses all such documents requested by the subpoena. The Court therefore orders Spectra to fully comply with the subpoena for production of business records.

Accordingly, the motion to compel compliance with production of business records is GRANTED.

Disposition

The motion to compel compliance with production of business records with respect to nonparty Natividad is GRANTED. Natividad is ordered to produce all responsive documents in compliance with the subpoena within 30 calendar days of this Order. As provided in the subpoena, the student names and any other personally identifiable information shall be redacted from the documents.

The motion to compel compliance with production of business records with respect to nonparty CHOMP is MOOT.

The motion to compel compliance with production of business records with respect to nonparty Spectra is GRANTED. Spectra is ordered to produce all responsive documents in compliance with the subpoena within 30 calendar days of this Order. As provided in the subpoena, the student names and any other personally identifiable information shall be redacted from the documents.