Judge Christian R. Gullon, Case Number: 20STCV24771, Date: 2023-07-20 Tentative Ruling

Judge: Christian R. Gullon, Case: 20STCV24771, Date: 2023-07-20 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling.

Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

PLAINTIFFS’ MOTION TO COMPEL DEPOSITION OF BOBBY CAGLE is DENIED, notably as Plaintiffs have set forth no factual basis that Cagle has direct factual information pertaining to the policies and procedures.

This case arises from the death of NOAH CUATRO (“Noah”). Plaintiffs EVANGELINA HERNANDEZ (“Eva”), individually and as Successor in Interest to the Estate of NOAH CUATRO; A.C. (“AC”), a minor, by and through her Guardian ad Litem, Evangelina Hernandez; E.C. (“EC”), a minor, by and through his Guardian ad Litem, Evangelina Hernandez; R.C. (“RC”), a minor, by and through his Guardian ad Litem, Evangelina Hernandez[2] allege the following against Defendants COUNTY OF LOS ANGELES (“County”) and HATHAWAY-SYCAMORES CHILD AND FAMILY SERVICES (“Hathaway-Sycamores” or “Hathaway”)[3]: On July 6, 2019, Noah was murdered by his parents, both of whom are awaiting trial. Noah’s death occurred after multiple reports of abuse and torture had been made to the Los Angeles County Department of Children and Family Services ("DCFS"). The allegations against Hathaway are predicated upon vicarious liability (retaining an unlicensed trainee (Erika Schreefel (“Schreefel”)) who did not communicate accurate information to the dependency court (DC) that created the misimpression that Noah and his parents were progressing towards reunification when in fact the family problems remained the same or worsened during this time frame) and independent negligence for its failure to supervise an unlicensed trainee. As for the County’s liability, it is predicated upon DCFS’s alleged breaches of various duties.

On June 26, 2023, the County filed a demurrer to the 5AC, which this court sustained with leave to amend and determined the MTS was moot.

On August 21, 2023, Plaintiffs filed their sixth amended complaint (6AC) alleging eight causes of action (COA) for:

3. Wrongful Death (Negligent retention and supervision) (Eva and Minor Plaintiffs v. County and Hathaway)

On November 15, 2023, the court heard oral argument on the demurrer to the 6AC and the MTS, which the court’s tentative was to overrule as to the 2^nd COA and sustain with leave to amend as to the 8^th COA. The court continued the hearing to allow for supplemental briefing as to both COAs.

On February 5, 2024, the court issued a final ruling on the demurrer and MTS as to the 6AC: “Defendant County of Los Angeles’ Demurrer to Plaintiffs’ Sixth Amended Complaint is SUSTAINED IN PART (i.e., 2nd COA; Plaintiffs have pled a mandatory duty (see State Manual Provisions) but the regulation must be pled in the Seventh Amended Complaint) and SUSTAINED IN PART with Leave To Amend as to the 8th COA. Defendant County of Los Angeles’ Motion to Strike Portions of Plaintiffs’ Sixth Amended Complaint is MOOT as a Seventh Amended Complaint is to be filed. The Plaintiff is Order to file a seventh amended complaint due on or before March 6, 2024.”

Pursuant to CCP section 2025.010, any party may obtain discovery by taking the oral deposition of any person to the action, including an organization such as a private corporation. Specifically, CCP section 2025.420 states the following: “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.” (Code Civ. Proc., § 2025.420(b).)

Plaintiffs seek to depose Bobby Cagle, the director of DCFS at the time of Noah’s death, on the following six subject matters: 1) comments Mr. Cagle made to the press; 2) protocol for applying for a removal order; 3) policies and procedures related to executing a removal order once issued by the court; 4) policies and procedures related to notification of a child's former and current caregivers re a removal order; 5) meetings Mr. Cagle attended with social workers and supervisors that were involved in Noah's case (as testified to in the depositions of County employees, Nancy Bryden and Keith Blyn); and 6) the DCFS internal investigation[4] into the plaintiff's government tort claim related to the incident alleged in plaintiffs' complaint, including Noah’s death. (Motion p. 3.)[5]

The County opposes the motion on the grounds that it violates the Apex Doctrine.[6]

The Apex Doctrine provides that before a plaintiff may take the deposition of a high-ranking or a “Apex” corporate officer (i.e., executives at the “apex” or the top of a company), the plaintiff must demonstrate both that (i) the corporate officer possesses superior or unique information relevant to the issues being litigated and that (ii) the information cannot be obtained by a less intrusive method (e.g., deposing a lower-ranking employee). (86 A.L.R.6th 519.) The seminal case discussing the Apex doctrine is Liberty Mut. Ins. Co. v. Sup. Ct. (1992) 10 Cal.App.4th 1282 (Liberty).

Here, however, Plaintiffs have set forth no reasons as to why Bobby Cagle is the person that has information as to DCFS’ protocols, policies, procedures, and training regarding removal orders. As noted by Defendant in opposition, Cagle was not responsible for making or enforcing the policies as they were most recently revised in 2014, years before Cagle joined DCFS in 2017. (Opp. 5:21-27.) This point was not addressed in Reply.

In fact, Plaintiffs’ own arguments undermine their position that Cagle has knowledge or was involved in Noah’s case before his death.

First, Plaintiffs rely upon the following argument: “DCFS employees have testified about Mr. Cagle’s direct factual information pertaining to the aftermath of Noah’s death and how it was handled by DCFS and Mr. Cagle . . . Mr. Cagle was present for at least one DCFS internal meeting relating to Noah’s death.” (Motion p. 6:7-18, emphasis added.) This underscores the fact that Cagle was not involved with matters before Noah’s death, but after his death.

Another of Plaintiffs’ arguments also undermines their position. Plaintiffs rely upon Cagle’s statement to the LA Times wherein he stated that he “think[s] [his] staff actually carried that process out well” and that he is “confident that the decisions that were made were the right ones.” (Reply p. 3, emphasis added.) This however is no affirmative statement that Cagle was involved with handling Noah’s case. If anything, it suggests that others (i.e., his staff) were involved and that he speculates that the decisions they/staff made were appropriate.

Thus, by Plaintiffs’ own recitation, if Cagle has any knowledge, it relates to the aftermath of Noah’s death, which he is amenable to being deposed about.

To the extent that there are PMQs, the County responded to Notices of PMQ depositions regarding various topics associated with removal orders, but Plaintiffs have not suggested new dates for the depositions. The Reply does not address this argument.

Based on the foregoing, as Plaintiffs’ motion (nor Reply) makes any showing that Cagle has unique or superior personal knowledge of discoverable information, the motion is DENIED.

[1] Due to the numerous filings in this case, the procedural background of the case will only discuss pertinent filings to this demurrer and motion to strike.

[2] Eva is Noah’s biological great-grandmother. AC is Noah’s biological sister, who is currently five years old. EC is Noah’s biological brother and is currently ten years old. RC’s, who is three years old, was Noah’s unborn sibling at the time of his death. They will collectively be referred to as the “Minor Plaintiffs.”

[3] Hathaway is a mental health and welfare agency that provides behavioral services to dependent minors. The County and Hathaway have a contract wherein Hathaway promises to provide psychological counseling and family support services for consumers referred by the County. (Id. ¶33.)

[4] According to the County, the internal investigation is privileged (attorney-client privilege and work product). The Reply does not address this point.

[5] Cagle is willing to be deposed about statements made to the press and confirm his only involvement with Noah’s case was after Noah’s death. (Opp. p. 7.)

[6] The County also argues the motion is untimely. The court need not address that issue as the motion is being denied on its merits.