Judge Daniel M. Crowley, Case Number: 19STCV31305, Date: 2023-08-15 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff via the Department's email: SMCdept71@lacourt.org before the set hearing time. See, e.g., CRC Rule 324(b). All parties are otherwise encouraged to appear by LACourtConnect for all matters.

Defendant, Western Asset Management Company, LLC’s motion to quash Plaintiff, Jennifer Hua’s Third Notice to Western Asset to have its Most Knowledgeable Person concerning its financial condition appear at trial.

“In the case of the production of a party to the record of any civil action or proceeding or of a person for whose immediate benefit an action or proceeding is prosecuted or defended or of anyone who is an officer, director, or managing agent of any such party or person, the service of a subpoena upon any such witness is not required if written notice requesting the witness to attend before a court, or at a trial of an issue therein, with the time and place thereof, is served upon the attorney of that party or person.”

As prescribed, the Notice to Appear must specifically identify the particular person whose attendance at trial is desired (similar to the subpoena procedure set forth in Section 1987(a)). That person must be “a person for whose immediate benefit an action or proceeding is prosecuted or defended or of anyone who is an officer, director, or managing agent of any such party.” This procedure is different than that for obtaining discovery via a deposition notice pursuant to Code of Civil Procedure section 2025.230. As explained by The Rutter Group, Civil Trials, “For depositions, so long as the subject matter of the examination is clearly stated in the deposition notice or subpoena, the entity, not the examiner, has the burden of producing the proper witnesses (CCP §2025.230). But this is not the rule at trial.” Wegner, Fairbank, Epstein & Chernow, Cal. Prac. Guide Civ. Trials & Ev. 1:100.1.

Plaintiff cites to no case disagreeing with this proposition. Plaintiff offers an unpublished case to support her position that she may compel a nonidentified “person most knowledgeable” via a Notice to Appear, (Tarik Omari v. Kindred Healthcare Operating (June 7, 2007, No. B185113) [2007 Cal. App. Unpub. LEXIS 4612]). Nonetheless, the Omari Court did not address the issue of whether the defendant’s PMK on financial issues was compelled to attend the trial.

Defendant, Western Asset Management Company, LLC’s motion to quash Plaintiff, Jennifer Hua’s Notices to Appear to Defendant’s CEO, James Hirschman

Defendant, Western Asset Management Company, LLC moves to quash Plaintiff, Jennifer Hua’s Third Notices to Western Asset to have its Chief Executive Officer, James Hirschman appear at trial. Defendant relies on the “Apex Doctrine” described in Liberty Mutual v. Superior Court (1992) 10 Cal. App. 4^th 1282.

Plaintiff argues that Mr. Hirschman has unique and relevant testimony to offer. Plaintiff further argues that the Court previously adopted the recommendation of a discovery referee appointed in this case that Mr. Hirschman be deposed. The referee found that the Apex Doctrine did not preclude Mr. Hirschman from being deposed, but recommended the Court limit the deposition to 2 hours and to limited topics.

The Court finds that that Court’s previous adoption of the referee’s recommendation does not necessarily compel a finding now that Mr. Hirschman must be compelled to testify at trial. The purpose of a deposition is for the preservation of evidence and discovery and the scope of a deposition is not limited to relevant testimony, but also to information likely to lead to the discovery of admissible evidence. (Code of Civil Procedure section 2017.010.) Trial testimony, on the other hand, is limited to admissible evidence. (Evidence Code section 350.) Accordingly, the necessity of a deposition may be greater than the necessity of trial testimony. Moreover, the inconvenience of sitting remotely for a 2-hour deposition is minimal compared to having to attend and testify at trial, without guarantees as to when the testimony will start and finish, possibly over the course of multiple days. Accordingly, the Court’s prior determination that Mr. Hirschmann should be deposed does not compel an order that he must also testify at trial.

Plaintiff offers evidence that Mr. Hirschman will testify that he is one of four individuals on Defendant’s Compensation Committee and that only he approves “off-cycle” salary changes, including a $5,000 raise for Plaintiff. Plaintiff deposed three of the four individuals, including Mr. Hirschman. Mr. Hirschman testified that he was not involved in determining either Plaintiff’s base salary or her year-end bonuses. Mr. Hirschman also testified that Defendant follows a compensation philosophy, but that it is not a science.

Given the limited evidence that Plaintiff proffers as Mr. Hirschman’s testimony in the case, the Court finds that plaintiff has failed to show good cause that Mr. Hirschman has unique or superior personal knowledge of admissible information . The Court also finds that Plaintiff can introduce Mr. Hirschman’s testimony via less intrusive methods, namely playing portions of his deposition testimony. (Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1289.)