Case Number: BC596220 Hearing Date: March 14, 2018 Dept: 47

Jerry San Martin v. County of Los Angeles

MOTION TO COMPEL DEPOSITION

MOVING PARTY: Plaintiff Jerry San Martin

RESPONDING PARTY(S): Defendant County of Los Angeles

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that he was discriminated against and retaliated against for requesting reasonable accommodations for his physical disability (Carpal Tunnel Syndrome) and for filing a Workers Compensation Claim.

Plaintiff moves to compel the deposition of Sheryl Spiller, an officer, director, managing agent or employee of Defendant County of Los Angeles.

TENTATIVE RULING:

Plaintiff Jerry San Martin’s motion to compel the deposition of Sheryl Spiller is MOOT due to her retirement.

DISCUSSION:

Plaintiffs’ Motions To Compel Deposition

Plaintiff moves to compel the deposition of Sheryl Spiller, an officer, director, managing agent or employee of Defendant County of Los Angeles.

Defendant has objected on the ground that the deposition of Spiller is subject to the apex doctrine and that there has been an insufficient showing to require her to be deposed at this time:

[W]hen a plaintiff seeks to depose a corporate president or other official at the highest level of corporate management, and that official moves for a protective order to prohibit the deposition, the trial court should first determine whether the plaintiff has shown good cause that the official has unique or superior personal knowledge of discoverable information. If not, as will presumably often be the case in the instance of a large national or international corporation, the trial court should issue the protective order and first require the plaintiff to obtain the necessary discovery through less intrusive methods. These would include interrogatories directed to the high-level official to explore the state of his or her knowledge or involvement in plaintiff’s case; the deposition of lower level employees with appropriate knowledge and involvement in the subject matter of the litigation; and the organizational deposition of the corporation itself, which will require the corporation to produce for deposition the most qualified officer or employee to testify on its behalf as to the specified matters to be raised at the deposition. (§ 2025, subd. (d)(6).) Should these avenues be exhausted, and the plaintiff make a colorable showing of good cause that the high-level official possesses necessary information to the case, the trial court may then lift the protective order and allow the deposition to proceed.

We do not believe, as real party suggests, that this holding will frustrate a plaintiff’s ability to penetrate high levels of corporate management in a search for truth. Specifically, we do not agree with real party that a high-level official’s protestation of ignorance of a lawsuit is self-serving and automatically suspect. Lower level officials, with some probable connection to a plaintiff’s case, are not permitted to avoid deposition by filing conclusory affidavits of ignorance. (Citation omitted.) In the case of an official at the head of corporate operations, however, expressions of ignorance of a specific case or claim are not implausible. At any rate the procedure outlined above will prevent undue harassment and oppression of high-level officials while still providing a plaintiff with several less intrusive mechanisms to obtain the necessary discovery, and allowing for the possibility of conducting the high-level deposition if warranted.

Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1289-90 (bold emphasis and underlining added).

It is the general rule in both California and federal courts that the heads of agencies and other top governmental executives are normally not subject to depositions. (Deukmejian v. Superior Court (1983) 143 Cal. App. 3d 632, 633 [191 Cal. Rptr. 905]; State Board of Pharmacy v. Superior Court (1978) 78 Cal. App. 3d 641, 644-645 [144 Cal. Rptr. 320]; Civiletti v. Municipal Court (1981) 116 Cal. App. 3d 105, 110 [172 Cal. Rptr. 83]; Church of Scientology of Boston v. I.R.S . (D.Mass. 1990) 138 F.R.D. 9, 10.)

“An exception to this general rule exists concerning top officials who have direct personal factual information pertaining to material issues in an action. [Citations.] [P] A top governmental official may, however, only be deposed upon a showing that the information to be gained from such a deposition is not available through any other source. [Citations.]” (Church of Scientology of Boston v. I.R.S. supra, 138 F.R.D. at p. 12.)

Real party points out that none of the California cases upon which petitioners rely involve the deposition of a named party-defendant. That is correct. However, federal cases applying the general rule have done so where the proposed deponent is a named party. (See Kyle Engineering Co. v. Kleppe (9th Cir. 1979) 600 F.2d 226, 231; Union Savings Bank of Patchogue, New York v. Saxon (D.D.C. 1962) 209 F. Supp. 319.) “Because of the similarity of California and federal discovery law, federal decisions have historically been considered persuasive absent contrary California decisions.” (Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal. App. 4th 1282, 1288 [13 Cal. Rptr. 2d 363].)

The general rule is based upon the recognition that “. . . an official’s time and the exigencies of his everyday business would be severely impeded if every plaintiff filing a complaint against an agency head, in his official capacity, were allowed to take his oral deposition. Such procedure would be contrary to the public interest, plus the fact that ordinarily the head of an agency has little or no knowledge of the facts of the case.” (Union Savings Bank of Patchogue, New York v. Saxon, supra, 209 F. Supp. at pp. 319-320.) This proposition is as true in California courts as in federal courts.

In the instant case, real party does not contend that either director has personal knowledge of the subpoenaing of her records. She contends, however, that their declarations did not establish that they have no knowledge of, for example, other cases in which subpoenas were issued or general knowledge of departmental requirements concerning privacy and confidentiality of records and other matters. These are matters which can be investigated through other sources and through much less burdensome means.

Nagle v. Superior Court (1994) 28 Cal.App.4th 1465, 1467-68 (bold emphasis added).

The Court requested further briefing from the parties on the following issues: (1) What is the administrative (as opposed to political) structure for the Department of Public Social Services, and where is the Director located in that hierarchy? (2) What information did Spiller personally convey to Plaintiff which he seeks to ask her about at deposition, why is such information material to Plaintiff’s claims, and why can’t this information be elicited by written discovery?

Apparently, Sheryl Spiller has recently retired as Director of the Department of Public Social Services. See Declaration of Lisa A. Grigg, ¶¶ 2 – 5. As such, the Notice of Deposition of Sheryl Spiller served upon Defendant is not longer effective to compel Spiller’s deposition. Plaintiff must now serve a deposition subpoena upon Spiller in order to procure her deposition testimony. The flipside of that is, Defendant’s apex-doctrine argument disappears.

Former employees, even if more knowledgeable than anyone currently employed by the company, are not party-affiliated deponents for purposes of the discovery statutes:

First, we make clear who may be compelled to appear when the deposition notice seeks the person most knowledgeable within a corporation. The code states that a party can procure the attendance of an individual at a deposition by way of notice only if the prospective deponent is “a party to the action” or “an officer, director, managing agent, or employee of a party . . . .” (Citation omitted.) “The attendance and testimony of any other deponent . . . requires the service on the deponent of a deposition subpoena under [former] Section 2020.” (Citation omitted.) The code applies by its language only to current officers, directors, managing agents, or employees. “Persons formerly affiliated with a party (e.g., former officers or employees) are not required to attend a deposition unless subpoenaed.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, P 8:518, p. 8E-26.4.) Therefore, ICG was not required to produce former employees in response to the notice just because the former employees are far more knowledgeable about the litigation than anyone currently employed by the company. ICG’s duty is limited, as we have said, to producing the most knowledgeable person currently in its employ and making sure that that person has access to information and documents reasonably available within the corporation.

Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1398 (italics added).

Accordingly, the motion to compel the deposition of Sheryl Spiller is MOOT. Neither party sought sanctions, and as such, none will be issued.

Defendant to give notice, unless waived.

IT IS SO ORDERED.

Dated: March 14, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court