Judge: Donald F. Gaffney, Case: Llamas v. Trader Joe’s Company, Date: 2022-09-28 Tentative Ruling
TENTATIVE RULING:
Plaintiff Alejandra Llamas has filed 7 motions to compel the deposition of various Trader Joe’s employees, including: (1) Andre McCurry (ROA 61); (2) Donnie Martin (ROA 65); (3) Brianna Ortman (ROA 69); (4) Trader Joe’s PMK (ROA 73); (5) Laurie Mead (ROA 77); (6) Jordan Hancock (ROA 81); and (7) Mitch Heeger (ROA 85). In addition, Plaintiff seeks monetary sanctions associated with each motion.
Compelling Depositions, Generally
Pursuant to CCP § 2025.450(a), a party may move for an order compelling a deponent’s attendance and production of documents, if a party “fails to appear for examination” or fails “to produce for inspection any document…described in the deposition notice.” (CCP § 2025.450(a)).
In addition, pursuant to CCP § 2025.450(b)(2), a motion brought under this provision shall “be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition …by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”
With regard to sanctions, CCP § 2025.450, subdivision (g) states:
(1) If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
(2) On motion of any other party who, in person or by attorney, attended at the time and place specified in the deposition notice in the expectation that the deponent's testimony would be taken, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of that party and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
The motions as to Andre McCurry, Donnie Martin, and Trader Joe’s PMK – GRANTED
Here, Defendant has agreed to provide McCurry, Martin and its PMK for deposition. Pursuant to the replies to the respective motions, Plaintiff acknowledges that deposition dates have been provided for McCurry and Martin, but Plaintiff is still waiting for deposition dates for the PMK.
Accordingly, the motions to compel the depositions of Andre McCurry, Donnie Martin, and Trader Joe’s PMK are GRANTED.
It is hereby ORDERED that the depositions are to take place at a mutually agreed upon time/place within 30 days’ notice of this ruling.
The Court hereby GRANTS sanctions of $735 per motion (1.5 hrs. x $450/hr., plus $60 filing fee) in favor of Plaintiff and against Defendant, to be paid within 30 days’ notice of this ruling.
Moving Party to give notice.
The motion as to Brianna Ortman - DENIED, BUT SANCTIONS AGAINST DEFENDANT FOR FAILURE TO MEET AND CONFER
This motion is DENIED as Defendant has indicated that Ms. Ortman is no longer employed with Defendant. See, Maldonado v. Sup. Ct. (2002) 94 Cal.App.4th 1390, 1398 [“The code states that a party can procure the attendance of an individual at a deposition by way of notice only if the prospective deponent is “a party to the action” or “an officer, director, managing agent, or employee of a party ....” …“The attendance and testimony of any other deponent ... requires the service on the deponent of a deposition subpoena under Section 2020.” … The code applies by its language only to current officers, directors, managing agents, or employees. ‘Persons formerly affiliated with a party (e.g., former officers or employees) are not required to attend a deposition unless subpoenaed.’”]
However, sanctions of $735 (1.5 hrs. x $450/hr., plus $60 filing fee) are warranted for Defendant’s failure to properly meet and confer. CCP § 2023.020 provides, “Notwithstanding the outcome of the particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.”
Here, Defendant failed to properly meet and confer since it failed to discuss the contents of their oppositions, specifically, that Ms. Ortman was no longer employed with Defendant, until after the instant motion was filed. As noted in the moving papers, Plaintiff attempted to secure deposition dates for two months prior to filing the instant motion, and Defendant’s general response was that it was still working on obtaining dates. Accordingly, sanctions are warranted despite the denial of the motion.
The Court hereby GRANTS sanctions of $735 (1.5 hrs. x $450/hr., plus $60 filing fee) in favor of Plaintiff and against Defendant, to be paid within 30 days’ notice of this ruling.
Moving Party to give notice.
The motions as to Laurie Mead, Jordan Hancock and Mitch Heeger – GRANTED
The general rule in California and federal court is that agency heads and other top governmental executives are not subject to deposition absent compelling reasons. (Westly v. Superior Court (2004) 125 Cal.App.4th 907, 911; Nagle v. Superior Court (1994) 28 Cal.App.4th 1465, 1467–1468; Deukmejian v. Superior Court (1983) 143 Cal.App.3d 632, 633; State Board of Pharmacy v. Superior Court (1978) 78 Cal.App.3d 641, 644–645; Church of Scientology of Boston v. IRS (D.Mass.1990) 138 F.R.D. 9, 12.) The rule applies to officials summoned to testify as third parties as well as those who are named defendants. (State Board of Pharmacy v. Superior Court, supra, 78 Cal.App.3d at p. 643; Nagle v. Superior Court, supra, 28 Cal.App.4th at p. 1468.)
“The general rule is based upon the recognition that ‘... an official's time and the exigencies of his everyday business would be severely impeded if every plaintiff filing a complaint against an agency head, in his official capacity, were allowed to take his oral deposition. Such procedure would be contrary to the public interest, plus the fact that ordinarily the head of an agency has little or no knowledge of the facts of the case.’ ” (Nagle v. Superior Court, supra, 28 Cal.App.4th at p. 1468.) 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. (Ibid., citing Church of Scientology of Boston v. IRS, supra, 138 F.R.D. at p. 12.)
A similar rule exists in the corporate context, often described as the apex doctrine, and is discussed by Defendant in its Oppositions filed under ROAs 104, 106 and 112. A court may grant a “protective order when a plaintiff seeks to depose a corporate president, or corporate officer at the apex of the corporate hierarchy, absent a reasonable indication of the officer's personal knowledge of the case and absent exhaustion of less intrusive discovery methods.” Liberty Mut. Ins. Co. v. Superior Court (1992) 10 Cal. App. 4th 1282, 1287.
“[T]he 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.” Liberty
Mut. Ins. Co. v. Superior Court (1992) 10 Cal. App. 4th 1282,
1289. . . . “Lower level officials, with some probable connection to a plaintiff's case, are not permitted to avoid deposition by filing conclusory affidavits of ignorance. . . . In the case of an official at the head of corporate operations, however, expressions of ignorance of a specific case or claim are not implausible.” Liberty Mut. Ins. Co. v. Superior Court
(1992) 10 Cal. App. 4th 1282, 1290. Although Defendant does not seek a protective order, it nonetheless seeks a determination that these individuals do not need to be produced for deposition. Accordingly, the same reasoning applies here.
The apex doctrine, one court said, is not meant to shield high-ranking officers from discovery but to sequence discovery to prevent litigants from deposing high-ranking officials routinely before engaging in less burdensome discovery methods. Alberto v. Toyota Motor Corp. (2010) 289 Mich. App. 328, 796 N.W.2d 490, 492. No court has held that the apex doctrine prevents a party from deposing a high-ranking corporate officer under all circumstances. Certainly, when a party seeks to depose an individual who has personal knowledge of facts relevant to a lawsuit, a court would expect that individual, even a corporate president or CEO, to appear for deposition. See In re Air Crash at Taipei, Taiwan, Oct. 31, 2000 (2002) 2002 WL 32155478. [apex doctrine under FRCP].
Thus, the apex executive doctrine does not bar the deposition of an apex executive outright, it only prevents a party from taking a discovery shortcut and going “straight to the top.” Therefore, even if the doctrine applies, an apex executive’s deposition may occur if the party can show that they have conducted the foundational discovery, and the discovery responses show that the executive “…has unique or superior personal knowledge of discoverable information.”
Thus, assuming Plaintiff’s deposition notices are directed to high ranking employees or officials, Plaintiff has to show that the executive has unique or superior knowledge of discoverable information. Therefore, for the evidentiary burden to shift, Defendant must first show that the proposed deponents are “apex employees” for the doctrine to apply in the first place. It has not done so.
In Opposition, Defendant contends that Ms. Mead is TJ’s Vice President (“VP”) of Human Resources (“HR”), that Ms. Hancock is TJ’s Senior HR Specialist, and that Mr. Heeger is TJ’s Executive Vice President (“VP”). However, Defendant fails to provide any evidence to support its claim that they are apex employees or that they have no knowledge of the facts of this case. Conclusory statements and argument by defense counsel do not constitute evidence.
Further, as noted by Plaintiff in Reply, Ms. Mead and Ms. Hancock’s relative employment positions may deal with a single Trader Joe’s location. Additionally, while no reply has been filed as to Mr. Heeger, the Complaint indicates that Mr. Heeger is the Executive Vice President of Stores and Donnie Martin’s direct supervisor, and that he is in charge of 90 stores. While that may seem like a large number, Trader Joe’s is a large, multi-state corporation, and again, Defendant has failed to provide any evidence that Mr. Heeger is an apex employee of Defendant.
Based upon the information before the court at this time, at most these employees are mid to lower level officials that have some probable connection to a plaintiff's case. The parties admit that Plaintiff alleges she made complaints to these individuals and/or communicated with them on at least one occasion. Thus, they are not permitted to avoid deposition by unsupported claims of ignorance. See, Liberty Mut. Ins. Co. v. Superior Court, supra, 10 Cal. App. 4th at 1290.
Based upon the foregoing, Defendant has not established that these individuals are apex employees and the motions are GRANTED.
It is hereby ORDERED that the depositions are to take place at a mutually agreed upon time/place within 30 days’ notice of this ruling.
The Court hereby GRANTS sanctions of $735 per motion (1.5 hrs. x $450/hr., plus $60 filing fee) in favor of Plaintiff and against Defendant, to be paid within 30 days’ notice of this ruling.
Moving Party to give notice.