Judge: Armen Tamzarian, Case: 24STCV25077, Date: 2025-02-04 Tentative Ruling

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Case Number: 24STCV25077    Hearing Date: February 4, 2025    Dept: 52

Plaintiff Michelle McGinnis’s Motion for Order That Specified Discovery Be Allowed Pursuant to Code of Civil Procedure § 425.16(g)

Plaintiff Michelle McGinnis moves for leave to conduct discovery before the hearing on defendant City of Los Angeles’s special motion to strike. 

Filing a special motion to strike stays all discovery, but “for good cause shown” a court “may order that specified discovery be conducted.”  (Code Civ. Proc., § 425.16, subd. (g).)  “If the plaintiff makes a timely and proper showing in response to the motion to strike, that a defendant or witness possesses evidence needed by plaintiff to establish a prima facie case, the plaintiff must be given the reasonable opportunity to obtain that evidence through discovery before the motion to strike is adjudicated.  The trial court, therefore, must liberally exercise its discretion by authorizing reasonable and specified discovery timely petitioned for by a plaintiff in a case such as this, when evidence to establish a prima facie case is reasonably shown to be held, or known, by defendant or its agents and employees.”  (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 868.)

Plaintiff seeks leave to depose four witnesses: (1) City Attorney Hydee Feldstein Soto, (2) Chief Deputy City Attorney Denise Mills, (3) Ian Thompson, and (4) defendant’s person most qualified on unspecified topics “should Ms. Feldstein Soto or Ms. Mills fail to provide percipient information on the items questioned.”  (Motion, pp. 2-3.)  As for the first two deponents, plaintiff seeks “production of those documents specifically referred to in her declaration.”  (Id., p. 2.)  Plaintiff also moves for leave to request production of several categories of documents.

Standard for Good Cause

Defendant argues plaintiff cannot show good cause because she presented no evidence in support of this motion.  Defendant provides no authority that showing good cause categorically requires admissible evidence.  “Decisions that have considered what constitutes such a showing of good cause have described it as a showing ‘that a defendant or witness possesses evidence needed by plaintiff to establish a prima facie case.’  [Citation.]  The showing should include some explanation of ‘what additional facts [plaintiff] expects to uncover.’ ”  (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 593.)  Not every “explanation” requires evidence. 

Defendant argues, “ ‘Merely assert[ing]’ that additional discovery is needed is not enough.”  (Opp., p. 5.)  Defendant relies on taking a quote from Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 357 out of context.  There, the plaintiff “did not file a noticed motion to conduct additional discovery.  Instead, he merely asserted in his opposing declaration he required more time to ascertain the facts and had not yet taken” depositions.  (Ibid.)  “In view of [his] failure to comply with section 425.16, subdivision (g), the trial court did not abuse its discretion in denying a continuance.”  (Ibid.)  This hearing is on plaintiff’s noticed motion under section 425.16, subdivision (g). 

Defendant also cites City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135.  That case concerns a Pitchess motion and therefore is irrelevant.

Depositions of Feldstein Soto and Mills

Plaintiff shows good cause to depose Feldstein Soto and Mills.  Plaintiff’s complaint alleges causes of action for whistleblower retaliation, retaliation for opposing practices forbidden by FEHA, and discrimination based on her association with members of a protected class.  “[I]n the absence of discovery, even” the minimal merit standard for opposing an anti-SLAPP motion “could pose particular difficulties for discrimination and retaliation plaintiffs, whose claims depend on assertions of motive that are peculiarly within the defendant’s knowledge.”  (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 891 (Wilson).)  “Where a defendant relies on motive evidence in support of an anti-SLAPP motion, a plaintiff’s request for discovery concerning the asserted motive may often present paradigmatic ‘good cause.’ ”  (Id. at pp. 891-892.) 

For the second prong of the anti-SLAPP analysis, Feldstein Soto and Mills both submitted declarations to support defendant’s arguments.  Defendant contends (1) plaintiff cannot show retaliation was a contributing factor for the adverse employment action (Anti-SLAPP Motion, p. 13); (2) plaintiff cannot show a “causal link” between protected activity and adverse action (id., p. 14); and (3) plaintiff cannot “allege or prove discriminatory motive” (id., p. 15).  In her declaration, Feldstein Soto attests to her personal observations of plaintiff’s work performance (Feldstein Soto Decl., ¶¶ 13-18) and the reasons for placing plaintiff on administrative leave (¶ 29).  In Mills’s declaration, she also attests to personal observations of plaintiff’s work performance (Mills Decl., ¶¶ 3-18) and the process of placing plaintiff on administrative leave (¶ 19). 

Feldstein Soto and Mills are both percipient witnesses directly involved in evaluating plaintiff’s performance and the decision to place her on administrative leave.  Those who decided to place plaintiff on administrative leave necessarily know their motive.  As in Wilson, plaintiff shows “paradigmatic ‘good cause’ ” (7 Cal.5th at p. 892) to depose Feldstein Soto and Mills. 

Defendant argues the apex witness rule prohibits deposing Feldstein Soto.  Assuming the apex witness rule applies to the City Attorney, plaintiff shows good cause to depose her.  “[W]here a party seeks to depose a high government official, and the official moves for a protective order, the burden is on the deposing party to show that compelling reasons exist for permitting the deposition.”  (Contractors’ State License Bd. v. Superior Court (2018) 23 Cal.App.5th 125, 132.)  “An exception will be made to this rule only when the deposing party makes two showings.  First, the deposing party must show that the government official ‘has direct personal factual information pertaining to material issues in the action ... .’  [Citation.]  Second, the deposing party must also show ‘the information to be gained from the deposition is not available through any other source.’ ”  (Contractors’ State License Bd. v. Superior Court (2018) 23 Cal.App.5th 125, 132.)

First, Feldstein Soto has direct personal factual information about the issues in this action.  The declaration she submitted in support of defendant’s anti-SLAPP motion demonstrates that.  Second, the information to be gained from deposing her is not available through other sources.  As discussed above, the motive for placing plaintiff on administrative leave is a critical issue in this case.  Feldstein Soto asserts she has personal knowledge of plaintiff’s work performance and of the reasons for placing her on administrative leave. 

Deposition of Ian Thompson

Plaintiff does not show good cause to depose Ian Thompson.  Plaintiff’s moving papers do not explain who Thompson is other than to say plaintiff “believes [he] is a percipient witness to many of the items in both Ms. Feldstein Soto’s and Ms. Mills’ declarations and who can attest to the fact that Plaintiff’s whistleblowing activity as a contributing factor in the adverse actions taken against her.”  (Motion, p. 6.)  To the extent plaintiff believes Thompson will attest that defendant did retaliate against plaintiff—i.e., that he supports her claims—she does not explain why she needs to depose him rather than obtaining his testimony informally.  (See The Garment Workers Center v. Superior Court (2004) 117 Cal.App.4th 1156, 1162 [“The trial court should consider whether the information the plaintiff seeks to obtain through formal discovery proceedings is readily available from other sources or can be obtained through informal discovery”].)

Deposition of Defendant’s Person Most Qualified

Plaintiff also does not show good cause to depose defendant’s person most qualified.  Under Code of Civil Procedure section 425.16, subdivision (g), the plaintiff must move for an “order that specified discovery be conducted.”  (Italics added.)  Section 2025.230 provides, “If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested.  In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.”  Plaintiff did not describe the matters of examination at all.  Rather than specified discovery, this proposed deposition is vague. 

Plaintiff also does not adequately explain why the City Attorney and plaintiff’s direct supervisor would not possess the relevant information to oppose defendant’s anti-SLAPP motion.

Document Requests

            Plaintiff moves for an order permitting her to request production of the following documents: “Weekly reports, including all Google Doc annotations, submitted by Plaintiff beginning in or around May 2023; All documents referring or relating to the February 14, 2024 Memorandum authored by Plaintiff to Ms. Feldstein Soto and Ms. Mills; All correspondence referring or relating to the ‘Ethical Wall’ Memorandum drafted by Plaintiff; All documents that refer or relate to the ‘Data Center’; All writings authored or received by Brian Sottile regarding the ‘Data Center’; [and] All correspondence referring or relating to Plaintiff from May 2023 to the present.”  (Motion, p. 3.) 

            Plaintiff shows good cause for discovery of these documents.  Feldstein Soto’s declaration states that the reasons for her lack of confidence in plaintiff’s work include that her “weekly reports became less substantive and informative.”  (Feldstein Soto Decl., ¶ 13.)  Feldstein Soto’s declaration also refers to the February 14, 2024 Memorandum (¶ 10) and criticizes the Ethical Wall Memorandum (¶ 16) and plaintiff’s proposed Data Center (¶ 15).  Finally, other correspondence referring to or relating to plaintiff may contain evidence essential to plaintiff’s opposition.

Disposition

Plaintiff Michelle McGinnis’s motion for leave to conduct discovery under Code of Civil Procedure section 425.16, subdivision (g) is granted in part.  The court hereby orders that plaintiff may depose City Attorney Hydee Feldstein Soto and Chief Deputy City Attorney Denise Mills.  Plaintiff may also request production of the categories of documents specified on page three of her moving papers.

The court hereby continues the case management conference and the hearings on defendant’s demurrer and special motion to strike from April 7, 2025, to May 13, 2025, at 9:00 a.m.