2015-00186569-CU-PO

Dean Higgs vs. Plum Healthcare Group, LLC

Nature of Proceeding: Motion to Compel Depositions

Filed By: Dudensing, Edward P.

Plaintiffs’ Dean Higgs, et al. motion to compel Defendants Plum Healthcare Group, LLC, et al to produce individuals for deposition is granted.

In this elder abuse action Plaintiffs seek to compel Defendants to produce 14 individuals affiliated with what they classify as the “corporate overseer defendants.” Plaintiffs seek to depose these individuals to explore the relationships between the corporate defendants and the degree of control exerted over the subject facility for purposes of their alter ego, joint venture, etc. theories. Plaintiffs noticed the depositions on June 26, 2018. Defendants objected to the depositions on various grounds including that the witnesses were apex employees. Plaintiffs indicate that Defendants’ counsel stated that they should be able to “work something out” but then never got back with any dates.

Pursuant to CCP § 2025.450(a), where a deposition notice has been properly served and the party subject to the notice fails to appear or proceed with it, the party serving the notice may move for an order compelling the deponent’s attendance and testimony.

In opposition, Defendants argue that 8 of the 14 witnesses are apex witnesses (Martine Harmon, Don Trowbridge, Alexander Fraser, Dave Kreter, Howard Park, Dennis Sweeny, Mark Ballif and Paul Hubbard) because they are all Board members of Bay Bridge Capital. “[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 means.” (Liberty Mutual Ins. Co., supra, at 1289.)

Liberty makes clear that “it amounts to an abuse of discretion to withhold a protective order when a plaintiff seeks to depose a corporate president, or corporate officer at the apex of the corporate hierarchy, absent a reasonable indication of the officer’s personal knowledge of the case and absent exhaustion of less intrusive means of discovery.” (Id.) But Defendants have not made a motion for protective order seeking to preclude Plaintiffs from deposing any of the individuals claimed to be apex employees. The requirements set forth in Liberty deal with a situation where the high level official moves for a protective order. (Liberty, supra, at 1289.) Since Defendants failed to move for a protective order, Plaintiffs were not required to make a showing of personal knowledge and exhaustion of less intrusive means.

Moreover, Defendants have made no showing that any of the 8 employees identified in the opposition are indeed Apex level employees. Generally, the burden is on the party or witness opposing discovery to make the case that the inquiry is barred by privilege or is beyond the scope of the discovery scheme. None of the employees submitted a declaration in support of the opposition. Indeed, Defendants did not submit any declarations at all in connection with the opposition. Simply asserting in an opposition memorandum that the employees are Apex level employees because they are all Board Members is not sufficient. Argument of counsel is not evidence. (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1173.) In any event Martine Harmon, Don Trowbridge, Alexander Fraser, Dave Kreter, Howard Park, Dennis Sweeny are the Board Members of Bay Bridge Capital Partners, LLC which Plaintiffs have alleged controls the subject facility as well as Plum Healthcare which is alleged to control staffing decisions at the facility. Plaintiffs indicate that Bay Bridge has no employees and thus acts only through these individuals. Plaintiffs’ financial expert indicates that these individuals have information regarding the manner and means by which Bay Bridge exerts control over other defendants. (Pomares Decl. ¶ 9; Dudensing Decl. ¶ 17.) Further, as to Mark Ballif and Paul Hubbard, they are co-founders of Plum Healthcare and were owners of the subject facility and were thus important individuals with respect to operations at the relevant time. (Dudensing Decl. ¶¶ 9, 10.) Defendants have even identified Mr. Ballif as the PMK for the organizational structure of the other defendants. Good cause exists for these depositions.

Defendants indicate that they have agreed to produce Mr. Ballif for deposition on

November 15, 2018.

As a result, the motion is granted. Defendants shall produce the 14 witnesses identified in the motion for deposition. The parties shall meet and confer as to the time and place for the depositions though they shall take place no later than December 12, 2018. The parties are free to agree on later dates.

Defendants’ request for a discovery referee to assist in scheduling these depositions in addition to approximately 50 other depositions for which Plaintiffs have requested dates (but which are not the subject of the motion) is denied. Such a request must be made by way of noticed motion. The Court does, however, strongly encourage the parties to stipulate to the appointment of a discovery referee. The Court notes that there are a number of discovery motions in the near future and to the extent that the parties do not stipulate to a discovery referee, the Court will consider appointing a discovery on its own motion pursuant to CCP § 639(a)(5) to address all discovery disputes in this matter and may well do so on the date of any of the upcoming motions.

No sanctions were requested and none are awarded.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.