2015-00176097-CU-PO

Joseph Mercado vs. Sunrise Center Apartments

Nature of Proceeding: Motion for Protective Order

Filed By: McLaughlin, II, William T.

Defendants Sunrise Center Apartments and Dick James & Associates, Inc.’s (collectively, “Defendants”) motion for protective order is ruled upon as follows.

This personal injury action arises from an incident that occurred at Defendants’ property, an apartment complex. On March 9, 2013, Plaintiff was descending concrete stairs when one of the concrete stairs failed, causing him to fall awkwardly and injure his knee, neck, and lower back.

On December 19, 2018, plaintiff Joseph Mercado (“Plaintiff”) noticed the depositions of Nader Afrooz and Daisy Afrooz to take place on January 3, 2019, in Plantation, Florida. (McLaughlin Decl. ¶ 2, Exh. A.) On January 9, 2019, this Court signed an Order granting Plaintiff’s ex parte request to take the depositions outside of California. (ROA 134.) But the Court did not rule on the issue before it presently.

Defendants now move for a protective order that the depositions of Nader Afrooz and Daisy Afrooz not be taken and that Plaintiff pursue discovery by means of written questions. Defendants contend they met and conferred with Plaintiff’s counsel, proposing a number of alternatives prior to bringing this motion, all of which were rejected by Plaintiffs’ counsel. Specifically, Defendants proposed Plaintiff’s counsel submit written questions which Nader and Daisy would answer under oath on an expedited basis, that the parties participate in a voluntary discovery conference pursuant to CCP § 2016.080, and providing Plaintiff’s counsel with a copy of Nader’s and Daisy’s declarations stating they have no personal knowledge as to the accident and alleged injuries and damages. Plaintiff rejected these proposals and this instant motion followed.

Nader and Daisy Afrooz, husband and wife, are co-trustees of the Daisy Afrooz Revocable Trust and the Nader Afrooz Revocable Trust (collectively, the “Trusts”), which have been the only limited partners of Sunrise since its formation. (Exh. D; Nader Decl. ¶ 3; Daisy Decl. ¶ 2.) Nader is 83 years, Daisy is 74 years old, and both reside in Florida. (Nader Decl. ¶¶ 1-2; Daisy Decl. ¶¶ 1-2.) Nader has cancer and is legally deaf. (Nader Decl. ¶ 2.)

Nader nor Daisy both declare they have no personal knowledge of any facts or circumstances surrounding the accident or alleged injuries and damages, and neither has had any involvement or participation in the lawsuit. (Nader Decl. ¶¶ 3-6; Daisy Decl. ¶¶ 2-5.)

Nader and Daisy are also the parents of Peter Afrooz, the President of PPC Property Management Inc. (“PPC”), Sunrise’s sole general partner since 2002. (McLaughlin Decl., Exh. C.) Defendants contend Peter was deposed for almost six hours and testified that, as President of PPC, he was responsible for managing the affairs of Sunrise and making decisions affecting the limited partnership’s interests. Peter also testified he was responsible for employing Dick James & Associates as the property manager for Sunrise during the time in question. (Exh. E.)

Defendants contend Plaintiff is seeking to depose two elder individuals, who reside in Florida, who have no relevant or personal knowledge regarding the accident and alleged injuries, when other less costly and less intrusive means are available by which to conduct this discovery. Defendants cite to Liberty Mutual Insurance Co. v. Superior Court (1992) 10 Cal.App.4th 1282 in support and contend the rationale underlying that case can be applied here.

The court in Liberty Mutual held that a corporate president and CEO could not be required to appear for deposition in a lawsuit in which he had no involvement, absent the deposing party’s exhaustion of less intrusive means of discovery. (Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1284-85 [to support a motion for protective order barring the deposition, the president and CEO submitted a declaration stating that he had no knowledge of any facts alleged in the complaint].) 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. at 1287.)

“[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, 10 Cal.App.4th at 1289 (emphasis added).) “At the outset it would seem sensible to prevent a plaintiff from leap-frogging to the apex of the corporate hierarchy in the first instance, without the intermediate steps of seeking discovery from lower level employees more involved in everyday corporate operations.” (Id. at p. 1287.)

The Court is not persuaded the rationale of Liberty Mutual applies to Nader and Daisy.

While Nader and Daisy are the co-trustee’s of the Trusts, the only limited partners of Sunrise, neither are the “corporate president” or other “official at the highest level of corporate management.” Further, Nader and Daisy, prior to establishing the Trusts, were the owners of Sunrise, but Liberty Mutual does not discuss or involve whether or not a property owner cannot be deposed until other less intrusive means of discovery are exhausted.

In opposition, Plaintiff contends the depositions are necessary because Nader and Daisy have owned Sunrise for decades and the level of disrepair the property was in takes many years to develop. Plaintiffs argue that as owners of the property for decades, their observations of the property over time, including its management and actions they took to fulfill their obligations as owners of the property at varying points in time, is relevant and likely to lead to the discovery of admissible evidence.

Plaintiffs also provide evidence that Nader was involved in decisions regarding the property up to the time of the incident. Specifically, Plaintiff cites to Peter and Michele Amaral’s (current owners of Dick James & Associates) testimony that Nader was involved in the selection of Dick James & Associates after the property was declared a public nuisance, and just four months prior to the subject incident. (Hayes Decl. ¶ 3, Exh. 1.) Plaintiffs further contend the depositions are important because Peter and Sunrise have not produced any documents either in response to document requests or in connection with document requests issued in connection with Peter’s deposition. Finally, Plaintiffs contend that given that trial is set for March 25, 2019, the depositions are the only feasible method of discovery.

Generally, the Court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (Cal. Code of Civ. Proc. § 2025.420(b).) A nonexclusive list of enumerated remedies available to a court when a party seeks a protective order include prohibiting the deposition entirely, changing the place, limiting scope of questioning permitted at the deposition, and limiting the form of discovery. (Nativi v. Deutsche Bank Nat’l Trust Co. (2014) 223 Cal.App.4th 261, 316.)

In determining whether to grant a protective order, the Court considers whether a particular method of discovery is unduly burdensome and expensive. (Cal. Code of Civ. Proc. § 2017.020(a).) A motion for a protective order should only be granted if the Court “determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (Cal. Code of Civ. Proc. § 2017.020(a); Cal. Code of Civ. Proc. § 2019.030(a).) This is Defendants’ burden.

Code of Civil Procedure section 2017.010 provides, in pertinent part: “Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” The discovery statutes vest wide discretion in the trial court in granting or denying discovery, but the Court may not use its discretion to defeat the liberal policies of the discovery statutes. The Court also acknowledges the broad scope of the discovery right, permitting a deponent to be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action–even if the testimony will not be admissible at trial–so long as it appears reasonably calculated to lead to the discovery of admissible evidence. It is the intent of the Legislature that discovery be allowed whenever consistent with justice and public policy. (See Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 382.)

Here, the Court is not persuaded Defendants have met their burden to demonstrate the burden of taking the depositions of Nader and Daisy in Florida clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. Nader and Daisy have owned the property for decades and Plaintiff has set forth persuasive arguments indicating their testimony is likely to lead to the discovery of admissible evidence regarding the maintenance of the property and actions taken to maintain the property prior to the incident. One of the purposes of discovery is to permit the parties to learn the issues on which they are in agreement and thereby simplify the trial (see Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 376).

However, given the age and health of the deponents, as demonstrated by their declarations, the Court GRANTS the motion for protective order in that the depositions shall be limited to no more than 2 hours each of actual testimony, with 15 minute breaks every hour. (Nativi, supra, at 316.)

The parties’ dueling requests for sanctions are DENIED. The Court finds that the circumstances would render sanctions unjust. (Code Civ. Proc. § 2025.420.)

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