Case Name: Nicole Albaum v. Ravinderbal Singh, et al.
Case No.: 2014-1-CV-268097 [Consolidated with 2015-1-CV-281056, 2015-1-CV-276408, et al.]

Motion for Protective Order as to Depositions of Person Most Knowledgeable for Saini Bros Trucking, Inc. and Saini Trucking, Inc.

Factual and Procedural Background

In this consolidated action, various plaintiffs have filed complaints for injuries sustained in a vehicular accident which occurred on July 10, 2014. The consolidated action includes the following actions:

(1) Nicole Albaum v. Ravinderbal Singh, et al., Santa Clara County Superior Court case number 2014-1-CV-268097 (“Albaum Action”);
(2) Gail-Jean McGuire and Doug McGuire v. Saini Bros Trucking, Inc., et al., Santa Clara County Superior Court case number 2015-1-CV-281056 (originally filed in Monterey County Superior Court as case number 129209; transferred to Santa Clara County Superior Court pursuant to an Order Granting Charles F. Gagliasso Trucking, Inc.’s Motion to Transfer Action for Consolidation filed April 8, 2015 in the Albaum Action; hereafter, “McGuire Action”);
(2) William Gilbert and Douglas Gilbert v. Ravinderpal Singh, et al., Santa Clara County Superior Court case number 2015-1-CV-276408 (“Gilbert Action”);

In the McGuire Action, plaintiffs Gail-Jean McGuire and Doug McGuire (collectively, “McGuires”) allege that they are the parents of decedent Daniel McGuire (“Decedent”) who was killed on July 10, 2014 when a tractor hauling two fully loaded trailers driven by defendant Ravinderpal Singh (“Singh”) collided with Decedent’s vehicle. (McGuire Second Amended Complaint (“McGuire SAC”), ¶¶1, 4, and 6.)

In the McGuire SAC filed on May 6, 2016, the McGuires assert causes of action for (1) Negligence – Wrongful Death and Survivor’s Action; (2) Negligent Hiring, Supervision, Training and/or Retention – Wrongful Death and Survivor’s Action; (3) Unfair Competition [versus defendants Saini Bros Trucking, Inc. (“SBT”), Singh, Surinder S. Banwait (“Banwait”), Saini Trucking, Inc. (“STI”), and Parminder Tambar].

On July 2, 2017, the McGuires served second amended notices of taking depositions of the persons most knowledgeable at STI and SBT. Defendants SBT and STI served objections to these depositions on July 5 and 6, 2017. Between June 19, 2017 and July 9, 2017, the parties met and conferred in an attempt to reach an informal resolution.

On July 11, 2017, defendants SBT, STI, Parminder Tambar, Surinder Banwait, and Iqbal Tambar, specially appearing in the McGuire Action (collectively, “Moving Defendants”) filed the motion now before the court, a motion for protective order as to the depositions of person most knowledgeable (“PMK”) for SBT and STI.

On July 19, 2017, plaintiff McGuires filed opposition.

Discussion

I. The motion for protective order as to depositions of PMK for SBT and STI is DENIED.

Code of Civil Procedure section 2025.420 provides, in relevant part:

(a) Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.
(b) 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. This protective order may include, but is not limited to, one or more of the following directions: (1) That the deposition not be taken at all.

Moving Defendants contend there is good cause for issuance of a protective order for several reasons. First, Moving Defendants contend the plaintiff McGuires are seeking to depose the PMK of SBT and STI concerning alter ego issues, but have not adequately alleged alter ego in the McGuire SAC. As such, Moving Defendants contend the plaintiff McGuires seek to depose the PMK of SBT and STI on irrelevant matter. Moving Defendants direct the court’s attention to the McGuire SAC, but acknowledge paragraph 8 of the McGuire SAC alleges that each of the defendants is an alter ego of the other. Moving Defendants cite legal authority and point to another ruling made by this court for the proposition that this allegation is insufficient to plead alter ego. However, the sufficiency of the pleading is not being tested. By acknowledging the existence of the alter ego allegation in the McGuire SAC, Moving Defendants cannot deny the relevancy of the depositions.

Second, Moving Defendants contend good cause exists for issuance of a protective order because the PMKs for STI and SBT are Surinder Banwait (“Banwait”) and Iqbal Tambar (“Iqbal”) and both have already been deposed by the plaintiff McGuires. “Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent.” (Code Civ. Proc., §2025.610, subd. (a).)

Moving Defendants contend Banwait and Iqbal have already been deposed in their individual and corporate capacity, but do not provide copies of the actual deposition notices. In opposition, plaintiff McGuires contend Banwait and Iqbal were deposed in their individual capacity only. Plaintiff McGuires do not proffer any evidence to support this assertion. Regardless, Code of Civil Procedure section 2025.610 does not act as a bar in this situation since the deposition notices at issue are not directed at natural persons. (See also Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2017) ¶8:482, p. 8E-21—“Nor … is leave of court required to examine a person designated to testify on behalf of a corporation where that person was previously deposed as an individual.”)

Included in Moving Defendants’ second argument is an assertion that the depositions are scheduled to occur in San Jose and would be burdensome and expensive because Banwait resides in Sacramento, Iqbal resides in Tracy, and Iqbal’s counsel is located in Sacramento. Moving Defendants proffer no evidence to support these factual assertions nor any evidence demonstrating why these facts alone would render a deposition in San Jose unduly burdensome and expensive.

Third, Moving Defendants contend good cause exists for the issuance of a protective order because any testimony would be unnecessarily cumulative as Banwait, Iqbal, and others have already testified and responded to other discovery on the alter ego issues. That Moving Defendants have already responded to other forms of discovery is not a basis for issuance of the protective order sought here. “A party is permitted to use multiple methods of obtaining discovery and the fact that information was disclosed under one method is not, standing alone, a proper basis for refusing to provide discovery under another method.” (Irvington-Moore, Inc. v. Superior Court (1993) 14 Cal.App.4th 733, 739.)

Both parties provide a chart to support their respective position with regard to whether deposing Banwait and Iqbal would or would not be cumulative. Moving Defendants contend Banwait, Iqbal, and others have already addressed the alter ego issues that plaintiff McGuires now seek to address. Plaintiff McGuires contend the prior deposition testimony did not address or did not adequately address all the topics that they now seek to depose SBT and STI’s PMK. Moreover, plaintiff McGuires agree to further limit the scope of the PMK depositions to seven topics rather than the 13 topics identified in the deposition notices at issue. Although it appears Banwait and Iqbal touched on some of the topics, the deposition testimony cited by Moving Defendants does not address the full scope of the issues that plaintiff McGuires now seek to question SBT and STI’s PMK.

As a fourth argument, Moving Defendants proffer evidence that SBT was dissolved on April 24, 2017. On June 7, 2017, Moving Defendants’ counsel provided plaintiff McGuires’ counsel with a copy of the certificate of dissolution. Moving Defendants cite Maldonado v. Superior Court (2002) 98 Cal.App.4th 1390, 1396 (Maldonado) for the proposition that a corporation is not required to produce its former officers, directors, managing agents or employees in response to a PMK deposition. The court does not find Moving Defendants’ citation to Maldonado to be applicable here. Maldonado stands for the proposition that a corporation’s obligation is “to produc[e] 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, supra, 98 Cal.App.4th at p. 1398.) Moving Defendants do not provide the court with any legal authority for the proposition that a corporation is absolved of its obligation to produce a PMK for deposition by virtue of dissolution. On the contrary, as plaintiff McGuires point out in opposition, “A corporation which is dissolved nevertheless continues to exist for the purpose of winding up its affairs, prosecuting and defending actions by or against it… .” (Corp. Code, §2010, subd. (a); emphasis added.)

As a fifth and final basis for good cause, Moving Defendants contend a third deposition of Banwait would endanger his health. In opposition, plaintiff McGuires contend the deposition notice is directed at SBT, not to Banwait personally. Plaintiff McGuires apparently acknowledge Banwait was the president of SBT from its inception to its dissolution, but also point out that Iqbal served as SBT’s secretary and controlled SBT’s day-to-day operations so Iqbal could be designated as PMK and testify. Banwait’s supporting declaration confirms SBT was a “closely held corporation owned and operated by myself and Iqbal Tambar.” Moving Defendants seek to prohibit the depositions altogether and have not asked for any lesser relief. Banwait’s inability to testify as the PMK for SBT is not good cause for issuance of a protective order prohibiting altogether the PMK depositions for SBT and STI.

Accordingly, the motion for protective order as to depositions of person most knowledgeable for Saini Bros Trucking, Inc. and Saini Trucking, Inc. is DENIED.