Keith Baty v. HNTB Corporation, et al.		CASE NO. 113CV243484
DATE: 1 August 2014	TIME: 9:00	LINE NUMBER: 8

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 31 July 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 1 August 2014, the motion of defendants RGW Construction, Inc. (“RGW”), Chris Boniface (“Boniface”), and Bill Auston (“Auston”) to quash or modify plaintiff’s subpoena duces tecum to Flatiron and request for monetary sanctions was argued and submitted. Plaintiff Keith Baty (“Baty”) filed a formal opposition to the motion.

Statement of Facts

The operative third amended complaint alleges that defendant HNTB Corporation (“HNTB”) employed plaintiff Baty from 2002 through July 7, 2011 as a Senior Construction Inspector earning $54.08 per hour. (Complaint, ¶15.) In or about 2009, the City of Sunnyvale (“City”) hired defendant RGW to widen an overpass on Mathilda Avenue (“Project”). (Complaint, ¶16.) As part of the Project, City hired HNTB to inspect RGW’s work and HNTB assigned the task to Baty. (Complaint, ¶16.)

Baty noticed RGW wanted to remove trees even though removal was not required. (Complaint, ¶17.) On 13 April 2010, HNTB, RGW and the City arborist met to discuss tree removal at the Project and the City agreed with Baty that tree removal was not required, infuriating RGW. (Complaint, ¶17.) At the meeting, RGW’s project engineer, defendant Boniface, expressed his anger at Baty by making racially derogatory remarks aimed at Baty’s African-American ethnicity. (Complaint, ¶¶18, 21, 23.) Plaintiff’s supervisor, defendant Andrew Kreck (“Kreck”) did nothing to stop the harassment and, instead, told Baty to “suck it up.” (Complaint, ¶¶18, 21, 22, 24, 26.) In the days following, Boniface and others continued to harass Baty. (Complaint, ¶¶25, 26.)

On 9 February 2011, RGW closed down Evelyn Avenue without obtaining City’s permission/ approval. (Complaint, ¶27.) Baty reported the violation to Kreck who then spoke to RGW’s project manager, defendant Bill Auston (erroneously sued as Bill Austin; hereafter, “Auston”). (Complaint, ¶27.) RGW removed the street closure. (Complaint, ¶27.) The next day, when it became apparent RGW was attempting to close the street again without permission, Baty took pictures at which point Auston began making racially derogatory remarks at Baty. (Complaint, ¶27.) Baty responds to harassment with nervous laughter. (Complaint, ¶20.) Auston called Kreck to the Project site and told Kreck that Baty was laughing at him. (Complaint, ¶28.) Even though Baty explained to Kreck of Auston’s harassment, Kreck sided with Auston. (Complaint, ¶28.)

On 21 March 2011, Kreck unilaterally prepared Baty’s two-week notice to quit and instructed Baty to sign but Baty refused. (Complaint, ¶29.) On 8 April 2011, HNTB placed Baty on administrative leave and terminated Baty on 7 July 2011. (Complaint, ¶29.)

On 22 March 2013, Baty filed a complaint against HNTB, RGW, Kreck, Boniface, and Auston asserting claims for: (1) racial discrimination; (2) wrongful termination in violation of public policy; and (3) harassment. On 19 April 2013, Baty filed a first amended complaint. Following a demurrer, plaintiff Baty filed a second amended complaint on 17 July 2013. After obtaining leave of court, plaintiff Baty filed the operative third amended complaint (“TAC”) on 15 May 2014 which asserts causes of action for: (1) discrimination [versus HNTB]; (2) wrongful discharge in violation of public policy [versus HNTB]; (3) harassment [versus HNTB and Kreck]; (4) intentional infliction of emotional distress [versus all defendants]; (5) aiding and abetting [versus RGW, Boniface, and Auston]; and (6) intentional interference with contractual relations [versus RGW, Boniface, and Auston]. On 13 June 2014, defendants RGW, Boniface and Auston filed an answer to the TAC. On 17 June 2014, defendants HNTB and Kreck each filed an answer to the TAC.

Discovery Dispute

On 24 June 2014, Baty issued a deposition subpoena for production of business records to the custodian of records at Flatiron (Auston’s current employer) seeking:

1. All applications for employment of Bill Auston, aka Billy Auston, aka Billy Joe Auston.
2. All resumes submitted for consideration of employment of Bill Auston, aka Billy Auston, aka Billy Joe Auston.
3. All interview notes, or assessments of or concerning Bill Auston, aka Billy Auston.
4. All correspondence to previous employers concerning Bill Auston, aka Billy Auston, aka Billy Joe Auston.
5. Any and all writings concerning any evaluation(s) of Bill Auston, aka Billy Auston, aka Billy Joe Auston either prior to employment or to date.
6. Any background investigation(s) conducted of Bill Auston, aka Billy Auston, aka Billy Joe Auston either prior to employment or to date.
7. All offers of employment made to Bill Auston, aka Billy Auston, aka Billy Joe Auston. By FLATIRON and or any of its existing subsidiaries.

(See Declaration of Francis D. Conway in Support of Defendant Bill Auston’s Motion to Quash, etc. (“Declaration Conway”), ¶5 and Exhibit A.)

On 26 June 2014, Baty served the deposition subpoena on Flatiron.

Between 27 June 2014 and 9 July 2014, Auston and Baty informally met and conferred with regard to the deposition subpoena, but did not reach a compromise or resolution. (See Declaration Conway, ¶¶9 – 16.)

On 10 July 2014, Auston filed the instant motion to quash or modify plaintiff’s deposition subpoena to Flatiron.

On 21 July 2014, Baty filed an opposition to the motion.

On 25 July 2014, Auston filed a reply brief.

Discussion

I.             Request for Judicial Notice

In support of its motion to quash or modify the deposition subpoena, Auston requests judicial notice of Baty’s TAC in this action. Auston’s request for judicial notice is GRANTED. (See Evid. Code, §452, subd. (d).) Evidence Code section 452 and 453 permit the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” (People v. Woodell (1998) 17 Cal.4th 448, 455.)

II.            Motion to Quash or Modify Deposition Subpoena

               A.           Legal Standard

The court may, “upon motion reasonably made by a [party] … make an order quashing [a] subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare ….”  (Code Civ. Proc., § 1987.1, subds. (a) and (b)(1).)  The party objecting to a discovery request bears the burden of explaining and justifying its objection. (See Fairmont Ins. Co. v. Super. Ct. (2000) 22 Cal. 4th 245, 255.)

1. B.               Defective Service

Initially, Auston objects on the basis that Baty improperly served the deposition subpoena to Auston’s employer, Flatiron, only two days after serving the deposition subpoena to Auston. “A deposition subpoena may not be served on the records custodian until at least 5 days after the ‘employee’ was served with a copy of the subpoena and notice of privacy rights.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2014) ¶8:596.30, p. 8E-68 citing Code Civ. Proc., §1985.6, subd. (b)(3); italics original.) “Failure to comply with any of the foregoing requirements by itself invalidates the service so that the employer (records custodian) is under no duty to produce the records sought by the subpoena. [¶] Moreover, even if the employer voluntarily produces the records, noncompliance with §1985.6 is ground for objection to admission of such records by the person whose records were subpoenaed.” (Id. at ¶8:596.40, p. 8E-69 citing Code Civ. Proc., §1985.6, subd. (j) and Sasson v. Katash (1983) 146 Cal.App.3d 119, 125; italics original.)

In opposition, Baty acknowledges this defect and explains further that Flatiron never received service since Flatiron’s agent for service rejected the deposition subpoena due to insufficient identification. (See Declaration of Shirley A. Kenninger in Support of Plaintiff’s Opposition, etc. (“Declaration Kenninger”), ¶3.) Baty’s counsel declares she did not learn of the rejection until 9 July 2014 at which time she forwarded notice of that rejection to Auston. (Declaration Kenninger, ¶¶4 – 5.) After receiving the instant motion, Baty’s counsel purportedly[1] e-mailed a letter to Auston’s counsel stating, in part, “When I sent you a copy of the notice I received from CSC stating the service of process was defective I assumed you would understand by my e-mail I meant that a withdrawal of the subpoena was not necessary since IT WAS NEVER SERVED. … Consider ANY POSSIBLE SUBPOENA THAT MAY HAVE BEEN EFFECTUATED BY NO SERVICE TO BE WITHDRAWN.” It is Baty’s contention that this motion is moot since Baty has already withdrawn the deposition subpoena.

In light of Baty’s admission of defective service and indication that the deposition subpoena has been withdrawn, the court deems Auston’s motion to quash or modify to be MOOT.

1. C.               Privacy

Auston further objects to the deposition subpoena on the grounds of privacy. Since the deposition subpoena in question has been withdrawn, Auston’s motion to quash or modify is moot. While Auston may disagree, the court does not issue advisory opinions. (See Vandermost v. Bowen (2012) 53 Cal.4th 421, 452—“The ripeness requirement, a branch of the doctrine of justiciability, prevents courts from issuing purely advisory opinions. [Citation.] It is rooted in the fundamental concept that the proper role of the judiciary does not extend to the resolution of abstract differences of legal opinion.”)

III.           Request for Sanctions

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 it finds that 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.” (Code Civ. Proc., §1987.2, subd. (a).)

The court questions whether the filing of this motion was even necessary. Although Baty notified Auston that Flatiron’s agent for service of process rejected the deposition subpoena on 9 July 2014, Baty also indicated in the subject line of her e-mail, “No withdraw forthcoming.” (Declaration Conway, ¶16 and Exhibit J.) Only after receiving the instant motion did Baty clarify that the deposition subpoena was withdrawn. Baty should have been clearer at the outset, but Auston should have taken this motion off calendar following clarification. Under these circumstances, the court declines to award attorney’s fees to either party.

 

 

 

 

Conclusion and Order

Auston’s motion to quash or modify plaintiff’s subpoena duces tecum to Flatiron is deemed MOOT.

All requests for monetary sanctions are DENIED.

 

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara