Judge: Daniel S. Murphy, Case: 20STCV45820, Date: 2022-10-31 Tentative Ruling

Case Number: 20STCV45820    Hearing Date: October 31, 2022    Dept: 32

BACKGROUND

            On May 4, 2021, Joseph Cartwright (“Plaintiff”) filed the operative First Amended Complaint (“FAC”) against Los Angeles Community College District (“LACCD”), Albert Roman (“Roman”), and Mercedes Gutierrez (“Gutierrez”) (collectively “Defendants”), alleging seven causes of action for discrimination, harassment, retaliation, failure to accommodate, failure to prevent FEHA violations, and violation of equal pay. Plaintiff alleges, among other things, that LACCD rejected his application for the position of Director of Employee-Employer Relations based on discriminatory motives.  

            On October 4, 2022, Plaintiff filed the instant motion to compel the deposition of Francisco Rodriguez, the chancellor of LACCD. Defendant invokes the apex doctrine in opposition.  

LEGAL STANDARD

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document … described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document … described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)

DISCUSSION

I. Apex Doctrine

The “apex doctrine” protects high-level officers of an organization from depositions when the officer has no first-hand knowledge of the facts of the case or where the officer’s testimony would be repetitive.  (Liberty Mut. Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1289.) To depose an officer at the apex of an organization requires “a reasonable indication of the officer’s personal knowledge of the case and . . . exhaustion of less intrusive discovery methods.” (Id. at p. 1287.)

a. Personal Knowledge

Plaintiff’s basis for deposing Chancellor Rodriguez is that Rodriguez is “a percipient witness that participated in discussions regarding whether Plaintiff was a qualified applicant for the position of Director of Employee & Labor Relations, including reviewing applications for the position.” (Mtn. 1:4-7.) Plaintiff contends that “[o]ne of the main issues in this matter is whether the job description for Director of Employee & Labor Relations was intentionally modified to prevent Plaintiff from meeting the minimum qualifications.” (Mtn. 4:15-17.)

To show Rodriguez’s purported direct involvement with the issues in this case, Plaintiff relies on deposition testimony of other employees who identified Rodriguez as one of the individuals who created the position of Director of Employer-Employee Relations and participated in discussing its requirements. (Mtn. 7:15-19, 8:1-3.) Defendant Roman also testified that Rodriguez has the authority to review and veto a termination decision. (Mtn. 8:20-27.) However, this is insufficient to establish that Rodriguez has information on this particular case—i.e., Plaintiff’s application and rejection for the position or Plaintiff’s termination. As Plaintiff acknowledges, an apex individual cannot be deposed unless they have “direct personal factual information pertaining to material issues in an action.” (Mtn. 5:26-27.)

Plaintiff also cites his own deposition, where he testified that Rodriguez selected people for the positions of Vice Chancellor of HR and President. (Mtn. 8:9-11.) However, Plaintiff never applied to those positions. The basis of Plaintiff’s claim is his rejection for the position of Director of Employer-Employee Relations. Plaintiff then relies on evidence that Rodriguez selected the Skelly officer responsible for evaluating disciplinary action against Plaintiff. (Mtn. 8:15-17.) If anything, that confirms that Rodriguez did not personally participate in Plaintiff’s termination, as he delegated review to someone else.

Defendant Roman was the head of the HR division, meaning he supervised the Employer-Employee Relations department. (Bahrynian Decl., Ex. 7 (Roman Decl.) ¶ 2.) It was Roman who made the recommendation to terminate Plaintiff. (Id., ¶ 42.) Roman issued the Notice of Intent to Dismiss. (Ibid.) Personnel Analyst Denise McGee made the initial determination that Plaintiff did not qualify for Director of Employer-Employee Relations. (Bahrynian Decl., Ex. 10 (McGee Decl.) ¶¶ 5, 12-15.) Therefore, Rodriguez is unlikely to have personal knowledge of facts pertinent to this particular case.

b. Exhaustion

Even if an apex individual has personal knowledge of pertinent facts, they may not be deposed unless there is “a showing that the information to be gained from such a deposition is not available through any other source.” (Mtn. 5:27-28.)

Plaintiff argues that the information possessed by Rodriguez cannot be obtained from another source because “Plaintiff’s request for deposition comes after taking the deposition of lower-level individuals – such as Defendant Albert Roman and Robert Miller [the Skelly officer] – who testified as to Chancellor Rodriguez’s involvement in and potential knowledge of facts relevant to the lawsuit.” (Mtn. 9:26-28.) However, deposing individuals who identified Rodriguez as a pertinent witness is not the same as exhausting other discovery methods to obtain pertinent information. Plaintiff never explains why he cannot obtain the information from deposing individuals like Roman and Miller, or through written discovery. The burden to “exhaust” other discovery methods is not satisfied by merely engaging in those other methods. Rather, those other methods must be insufficient, leaving the apex individual as the only source of pertinent information. (See Mtn. 5:27-28, citing Nagle v. Superior Court (1994) 28 Cal.App.4th 1465, 1468.)

The testimony that Plaintiff relies on actually shows multiple other individuals who could have pertinent information. (See Mtn. 7:17-19 [identifying Karen Martin, Roman, Rodriguez, and Mercedes Gutierrez as the individuals who were involved in creating the Employee-Employer Relations position].) Rodriguez did not even create the position by himself, and it is unclear why Plaintiff contends Rodriguez is the only one who has relevant information. As to Plaintiff’s termination, as discussed above, Rodriguez delegated Skelly review authority to someone else (Miller), and it was Roman who recommended the termination. Plaintiff does not explain why Rodriguez would have exclusive knowledge beyond that possessed by these arguably more pertinent individuals.  

In sum, Plaintiff has not adequately established that Chancellor Rodriguez has personal knowledge of pertinent facts or that Plaintiff has exhausted other methods of obtaining those facts. Accordingly, Rodriguez’s deposition is barred under the apex doctrine.

CONCLUSION

            Plaintiff’s motion to compel deposition is DENIED.