Judge Blaine K. Bowman, Case Number: 37-2021-00026967-CU-OE-CTL, Date: 2024-05-03 Tentative Ruling

Judge: Blaine K. Bowman, Case: 37-2021-00026967-CU-OE-CTL, Date: 2024-05-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 02, 2024

05/03/2024 08:30:00 AM C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited Other employment Discovery Hearing 37-2021-00026967-CU-OE-CTL BROWN MD VS THE REGENTS OF THE UNIVERSITY OF CALIFORNIA [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiff's motion to compel the deposition of Elizabeth Simmons, Executive Vice Chancellor of The Regents of the University of California, is DENIED.

There is no dispute as to Simmons' title and role as Executive Vice Chancellor. Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282 sets forth the applicable analysis with respect to 'apex' depositions.

[W]e hold that when 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 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. (� 2025, subd. (d)(6).) 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.

Liberty Mutual, 10 Cal.App.4th at 1289.

The court finds the evidence Plaintiff submits insufficient to meet Plaintiff's burden of establishing that Simmons has unique or superior knowledge of discoverable information so as to allow for the deposition of Simmons at this time. The deposition testimony of Dr. Wolfgang Dillman wherein Dillman testifies that he may have reported the (allegedly illegal) policy of crediting the effort of part-time faculty at 100% to Simmons does not support a finding that Simmons has unique or superior knowledge, especially when considering Dillman was available for deposition and was deposed regarding these communications.

Moreover, Simmons' declaration, signed under oath, specifically states that Simmons has 'no recollection of any discussion with Dr. Wolfgang Dillmann regarding alleged complaints by Dr. Brown or her alleged whistleblower activities.' Plaintiff's also relies on 1) evidence that Simmons was copied on an August 2, 2019, letter from Judith Calendar No.: Event ID: TENTATIVE RULINGS

3114403 4 CASE NUMBER: CASE TITLE: BROWN MD VS THE REGENTS OF THE UNIVERSITY OF CALIFORNIA 37-2021-00026967-CU-OE-CTL Bruner (Chief Ethics and Compliance Officer, UCSD) to Gerry Boss M.D. (Interim Division Head, General Internal Medicine), 2) evidence of an email chain dated July 6, 2019 between Patty Maysent and Christopher Kane discussing preparation of the 'letters of findings to the people with findings in the investigation' and that such letters/recommendations would be sent to Simmons and, 3) an October 21, 2019, letter from Simmons to Boss. The court finds nothing in these communications evidences Simmons' unique or superior knowledge of discoverable information as there is no evidence that Bruner, Boss, Maysent or Kane are unavailable for deposition. To the extent Plaintiff seeks to depose Simmons to discover which if any of these communications Simmons received, and what Simmons did or did not do following receipt of these communications, the court finds such questions more appropriate to written discovery to initially determine if Simmons has any relevant knowledge. Although Plaintiff argues that Simmons was made aware of retaliatory conduct by others against Plaintiff, none of the evidence Plaintiff relies on supports such a finding. Thus, inquiry via written interrogatories is more appropriate to initially determine whether Simmons has any unique knowledge of any relevant information. In reply Plaintiff states Plaintiff intends to ask Simmons 1) 'why she decided not to impose any discipline on the wrongdoers' 2) 'what she did with the 'letters of recommendations' that were sent directly to her by UCSD Executives' [emphasis in original] 3) 'what correspondence she received regarding Dr. Brown's [Plaintiff's] protected disclosures' and 4) 'what actions she took/did not take in response to this information, and why.' As above, the court finds such questions more appropriately suited to written interrogatories at this time. Absent first establishing Simmons has unique or superior knowledge of discoverable information, there is no basis for a finding of good cause to depose Simmons.

This ruling is without prejudice to Plaintiff's ability to bring a subsequent motion to compel, after first exhausting less intrusive means of discovery, including special interrogatories directed to Simmons, and upon a 'colorable showing of good cause.' Liberty Mutual, 10 Cal.App.4th at 1289.

Plaintiff's request for sanctions is DENIED.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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