Judge Daniel S. Murphy, Case Number: 24STCV24222, Date: 2025-04-18 Tentative Ruling

On September 18, 2024, Plaintiff Jose Arellano filed this action against Defendants Diamond Construction, Inc. (DCI) and Thomas Anastasios Christopoulos (Anastasios Christopoulos) for wage violations and retaliation. On February 21, 2025, Tom Christopoulos (Tom Christopoulos) was added as Doe 1.

On March 18, 2025, Plaintiff filed the instant motion to compel the deposition of Tom Christopoulos, DCI’s chief executive officer. DCI filed its opposition on April 7, 2025. Plaintiff filed his reply on April 11, 2025.

“If, after service of a deposition notice, a party to the action . . . without having served a valid objection under Section 2025.410, fails to appear for examination . . . or to produce for inspection any document, electronically stored information, or tangible thing 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(a).)

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.) “The rule applies to officials summoned to testify as third parties as well as those who are named defendants.” (Westly v. Superior Court (2004) 125 Cal.App.4th 907, 910.) “An exception to the rule exists only when the official has direct personal factual information pertaining to material issues in the action and the deposing party shows the information to be gained from the deposition is not available through any other source.” (Id. at p. 911, emphasis in original.)

Plaintiff argues that the apex doctrine does not apply to Tom Christopoulos because Plaintiff seeks to depose Tom Christopoulos in his personal capacity as a pertinent witness, not just as CEO of DCI. (Reply 3:25-4:1.) This is a distinction without a difference. Tom Christopoulos’ knowledge, if he has any, would be derived from his position as CEO. Plaintiff admits as much in his opening brief. (See Mtn. 6:5-6 [“As Chief Executive Officer Mr. Christopoulos has personal knowledge regarding the overtime policies, meal and rest policies, and wage and hour policies at the center of this litigation”].) Plaintiff also argues that he issued the deposition notice to Tom Christopoulos as an “officer” of DCI, thus belying his personal capacity argument. (Mtn. 5:15-17.)[1]

If a party could depose the head of an organization by simply claiming that the deposition was sought in a personal capacity, the apex doctrine would be toothless. The naming of Tom Christopoulos as a defendant has no bearing, because the apex doctrine applies to both “third parties as well as those who are named defendants.” (Westly, supra, 125 Cal.App.4th at pp. 910.) Thus, the apex doctrine applies to Tom Christopoulos.

“An exception to the rule exists only when the official has direct personal factual information pertaining to material issues in the action and the deposing party shows the information to be gained from the deposition is not available through any other source.” (Westly, supra, 125 Cal.App.4th at pp. 911.) In other words, deposing an apex witness is presumptively disallowed unless the two exceptions are met. This standard naturally places the burden on the party seeking the deposition.

Plaintiff has not established that Tom Christopoulos possesses unique knowledge of material facts. Plaintiff argues that Tom Christopoulos is a pertinent witness because Tom Christopoulos has personal knowledge of DCI’s policies, and because the complaint alleges that Tom Christopoulos personally received Plaintiff’s complaints and made the employment decisions. However, the “Mr. Christopoulos” referenced in the complaint refers to Anastasios Christopoulos, the son of Tom Christopoulos. (See Compl. ¶ 5.) Thus, the allegations in the complaint do not actually establish that Tom Christopoulos was personally involved in or has personal knowledge of the circumstances of the case. Plaintiff otherwise cites no proof of Tom Christopoulos’ personal knowledge or involvement.

In any event, Tom Christopoulos’ personal knowledge of relevant facts is not sufficient by itself, because an apex witness cannot be deposed unless the information sought cannot be obtained from any other source. These alternative sources “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.” (Liberty Mutual, supra, 10 Cal.App.4th at p. 1289.) Plaintiff has not established exhaustion of alternative methods, nor has Plaintiff cited any discovery revealing Tom Christopoulos as the only person with relevant information.

In sum, Tom Christopoulos, as the CEO of DCI, is an apex witness whose deposition is limited to the circumstances where he has “direct personal factual information” which “is not available through any other source.” (See Westly, supra, 125 Cal.App.4th at pp. 910-11.) Plaintiff has not made the factual showing necessary to except Tom Christopoulos from the apex doctrine. Thus, Tom Christopoulos cannot be deposed.

Plaintiff’s motion to compel deposition is DENIED. Sanctions are denied as the parties acted with substantial justification.

[1] At the time of the deposition notice, Tom Christopoulos was not a party to the action. Thus, the only basis to summon him through a deposition notice was his status as an officer or employee of DCI. (See Code Civ. Proc., § 2025.280(a).)