LORRAINE GREEN VS BANC OF CALIFORNIA INC

Case Number: BC588103 Hearing Date: June 16, 2016 Dept: 61

Defendant Banc of California’s Motion to Quash Notice of Deposition of Steven Sugarman is GRANTED.

Facts: Plaintiff Lorraine Green (“Green”) was employed by defendant Banc of California, Inc. (“BOC”) from March 1, 2013 until November 4, 2014, and from November 21, 2014 until June 1, 2015 in the position of “Onboarding Acclimator.” (First Amended Complaint (“FAC”) ¶¶ 2, 9.) On April 26, 2014, Green suffered a heart attack that required her to take several disability leaves of absences, specifically, from April 26, 2014 until May 15, 2014. (FAC ¶ 10.) On July 12, 2014, Green suffered another heart attack that required her to be placed on a disability leave until July 29, 2014. (Id. ¶ 11.)

On September 2, 2014, Green’s doctors ordered her to work a reduced, 30-hours per week schedule. (FAC ¶ 12.) On September 11, 2014, Green’s doctor placed her on disability leave until December 16, 2014. (Ibid.) However, BOC only approved leave until October 22, 2014. (Ibid.) Defendant Elizabeth Woods (“Woods”), a Senior Human Resources Generalist for BOC, denied the request for leave through December 16, 2014, and stated that Green’s failure to return to work by October 23, 2014 would be considered a voluntary resignation. (Ibid.)

On October 2, 2014, Green sent a letter to Woods inquiring as to why her leave request was denied. (FAC ¶ 13.) Woods responded that her leave was extended until November 5, 2014, and stating that Green’s failure to return to work by November 6, 2014 would be considered a voluntary resignation. (FAC ¶ 14.) On October 17, 2014, Woods denied Green’s request for leave until December 16, 2014. (Id. ¶ 15.) On November 5, 2014, Green’s employment with BOC was terminated. (Id. ¶ 16.)

Green subsequently requested written notice of her termination, and on November 21, 2014, Woods sent an email stating that BOC decided to reverse the previous denials of the leave of absence requests. (FAC ¶ 18.) On December 9, 2014, Green’s doctor extended her disability leave until January 31, 2015, and on December 17, 2014, BOC approved the request. (FAC ¶ 19.) On January 26, 2015, Green’s disability leave was again extended to February 28, 2015, and BOC approved the leave. (FAC ¶ 19.)

On February 27, 2015, Green request to return to work at 20 to 30 hours per week and to work from home. (FAC ¶ 20.) This request was approved through May 31, 2015. (Id. ¶ 21.) BOC told Green that she would not be permitted to work from home after that day because it did not allow hourly employees to work from home, despite allowing several such employees to do so. (FAC ¶ 23.)

On May 22, 2015, Green requested the extension of her accommodation to work from home on reduced hours to December 1, 2015. On June 1, 2015, Woods contracted Green and informed her that her employment with BOC was terminated. (FAC ¶ 24.)

Procedural History: Green filed her original complaint on July 14, 2015. Green filed her FAC on December 4, 2015, alleging six causes of action:
1. DISCRIMINATION BASED ON DISABILITY IN VIOLATION OF CALIFORNIA GOVERNMENT CODE SECTION 12940, ET. SEQ.;
2. FAILURE TO PROVIDE REASONABLE ACCOMMODATION IN VIOLATION OF CALIFORNIA GOVERNMENT CODE SECTION 12940, ET. SEQ.;
3. FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS IN VIOLATION OF CALIFORNIA GOVERNMENT CODE SECTION 12940, ET. SEQ.
4. RETALIATION IN VIOLATION OF CALIFORNIA GOVERNMENT CODE SECTION 12940, ET. SEQ.
5. WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY;
6. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS;

Pre-Filing History: On April 18, 2016, Green took the deposition of Anjanete Valenta (“Valenta”), BOC’s VP of Human Resources. (Ngo-Bonnici Decl. ¶ 2.) Valenta testified that she had weekly or semi-weekly meeting with BOC’s CEO Steven Sugarman (“Sugarman”), but that she never discussed Green or her employment status with Sugarman. (Ibid, Ex. A.)

On May 10, 2016, Green served a Notice of Deposition of Sugarman. (Ngo-Bonnici Decl. ¶ 3.) On May 20, 2016, BOC served Green with objections to Notice of Deposition. (Id. ¶ 4.) On May 20, 2016, BOC sent a letter to Green requesting a meet and confer conference regarding the Sugarman deposition. (Id. ¶ 5.) BOC offered to provide a declaration by Sugarman that he never saw any documents referencing Green, was never involved in any aspect of Green’s employment, and had no unique knowledge relevant to the claims in this case. (Id. ¶ 6.) This offer was rejected.

On May 23, 2016, BOC called Green to discuss the Sugarman deposition further, but Green stated that she would not unnoticed the deposition and would proceed. (Ngo-Bonnici Decl. ¶ 7.) BOC filed its Motion to Quash Deposition on May 23, 2016. Green filed her Opposition on June 3, 2016. BOC filed its Reply on June 9, 2016.

MOTION TO QUASH:

“If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, 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. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc., § 1987.1, subd. (a).)

BOC argues that the requested deposition of Sugarman is “strongly disfavored” because he is the “apex” officer of BOC. (Motion to Quash at p. 3–5.) BOC argues that Green has not shown that Sugarman possess unique or superior personal knowledge of discoverable information in this case. BOC also argues that AOW has not exhausted less intrusive methods of discovery in this matter because Green has not propounded interrogatories on Sugarman and has not yet concluded the depositions of six lower-level BOC employees. (Motion to Quash at pp. 4–5.)

A corporate president or officer who is at the “apex” of a corporate hierarchy may be prohibited from being deposed by the filing of a motion for a protective order where the moving party shows that the corporate officer lacks knowledge of the facts at issue, or involvement in the litigation is sought before the plaintiff exhausts less intrusive means of discovery. (Liberty Mutual Insurance Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1287–1288 (“Liberty Mutual”).) The Court of Appeals reasoned that such depositions:
“. . . raise a tremendous potential for discovery abuse and harassment. Vast numbers of personal injury claims could result in the deposition of the president of a national or international company whose product was somehow involved. It would be unreasonable to permit a plaintiff to begin discovery by deposing, for instance, the chief executive officer of a major automobile manufacturer when suing over a design flaw in a brake shoe — especially if we were to accept real party’s argument that the mere act of copying the chief executive officer with a few pieces of correspondence creates “constructive notice” justifying the deposition.”
(Id. at p. 1287.) Trial courts, in determining whether to grant a protective motion for such a deposition:

“. . . 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. [Citation.] 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.”
(Id. at p. 1289.)

“In the case of an official at the head of corporate operations . . . 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, supra, 10 Cal.App.4th at p. 1290.)

In Liberty Mutual, plaintiff’s husband suffered a serious industrial accident, and claimed that defendant Liberty Mutual delayed providing her with an occupational therapist to help her care for her husband, who required 24-hour care. (Liberty Mutual, supra, 10 Cal.App.4th at p. 1285.) Plaintiff noticed a deposition of Liberty Mutual’s CEO, and Liberty Mutual moved for a protective order, and submitted a declaration stating that he was not involved in the handling, supervision, or management of the claim and had no knowledge regarding plaintiff’s claims. (Ibid.) Plaintiff argued that because the CEO was copied on two letters written by her counsel to Liberty Mutual, the CEO had “constructive notice” of the allegations against Liberty Mutual in the handling of the underlying claim related to the husband. Plaintiff sought to depose him without first attempting either a deposition of Liberty Mutual itself or of it lower-level employees actually involved in the underlying claim, and plaintiff never served interrogatories on the CEO.

Green argues that she has shown good cause for the deposition of Sugarman because Sugarman was Valenta’s direct supervisor, and the two met weekly or bi-weekly to discuss issues in the HR department. (Opposition at pp. 4–5.) They argue that Sugarman therefore supervised Valenta during the time period the HR department was making the decisions regarding Green’s leave requests. Green intends to depose Sugarman on the following issues:

(i) Sugarman’s expectations of Valenta and the HR department; (ii) the purpose of Sugarman’s regular meetings with Valenta; (iii) Sugarman’s expectation of issues that Valenta would or should discuss with him at their regular meetings; (iv) what occurred at the regular meetings attended only by Sugarman and Valenta; and (v) Sugarman’s evaluation of Valenta’s performance as head of HR of Defendant. These are standard and indeed routine areas of inquiry for the deposition of the direct supervisor (Sugarman) of a key decision-maker (Valenta).

(Opposition at p. 5.)
Green has not shown good cause for the deposition of Sugarman. Green argues that it is not seeking to depose Sugarman because he is the CEO of BOC, but rather because he is the “direct supervisor” of Valenta, the head of the HR department. However, Sugarman is arguably the directly supervisor of every head of a department. The court therefore finds little distinction between deposing a CEO and deposing the direct supervisor of a head of a department.

Green has failed to show that Sugarman has “unique or superior personal knowledge of discoverable information.” Of the topics Green seeks to depose Sugarman about listed above, three involve the purpose behind the meetings with Valenta. Because both Valenta and Sugarman state that Green’s case was not discussed at these meetings, more information regarding these meeting would not relevant to the claims at issue in this action. Additionally, Sugarman’s subjective thoughts regarding Valenta are not relevant to the claims by Green that she was not reasonably accommodated. The FAC alleges that the decisions made by BOC were made by Wood.

It appears that Valenta is Wood’s supervisor, and as head of the HR department, was clearly a relevant witness. However, Sugarman stated in his declaration that he “was not involved in any employment decision regarding Lorraine Green. I did not supervise Ms. Green and do not recall every speaking to her. I have never discussed Ms. Green’s employment, employment status, leaves of absence or her accommodation requests with any employee of BOC at any time before Mr. Green filed a lawsuit against BOC.” (Sugarman Decl. ¶¶ 3, 4.) Valenta testified in her deposition that she never discussed Green during her meetings with Sugarman. (Ngo-Bonnici Decl. Ex. A, 239:13–23.) There has been no showing that Sugarman would have unique or superior personal knowledge related to Green claims. While Valenta would be a proper witness as Wood’s supervisors, Green would have to show that Valenta’s supervisor, Sugarman, had some unique knowledge regarding the incident in order to justify a deposition. No such showing has been made.

Because Green has failed to show good cause for the Sugarman deposition, the issue of other means of discovery is irrelevant. The Motion to Quash the Deposition of Sugarman is GRANTED.

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