Judge: Elaine Lu, Case: 20STCV20074, Date: 2023-01-05 Tentative Ruling

Case Number: 20STCV20074    Hearing Date: January 5, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background       

             On May 27, 2020, Plaintiffs Hector Olvera, et al.,[1] (collectively “Plaintiffs”) filed the instant habitability action against Defendants Sylmar Foothill LLC, Eden Garden Apartments, LLC, and Apartment Investments Inc.  On June 2, 2021, Plaintiffs filed two Doe amendments naming Winstar Properties, LLC and Winstar Properties, Inc.^[2] as Does 1 and 2 respectively. 

On January 12, 2022, Plaintiffs filed the operative Second Amended Complaint (“SAC”) against Defendants Sylmar Foothill LLC, Eden Garden Apartments, LLC, Apartment Investments Inc., and Winstar Properties, LLC asserting seven causes of action for (1) Breach of Implied Warranty of Habitability, (2) Breach of Statutory Warranty of Habitability, (3) Breach of the Covenant of Quiet Enjoyment, (4) Negligence, (5) Violation of Civil Code section 1942.4, (6) Private Nuisance, and (7) Declaratory Relief.[3]  Trial is currently set for February 6, 2023.

            On December 12, 2022, Defendant Winstar Properties, LLC (“Winstar”) filed the instant motion for a protective order as to the deposition of Winstar’s Chief Operating Officer, Rachel Teller.  On December 28, 2022, Plaintiffs filed an opposition.  On January 3, 2023, Winstar filed a reply.

Allegations of the Operative Complaint

The SAC alleges that:

            Defendants are managers and/or owners of the apartment building at 10237-10261 Western Ave, Downey CA 90241-2451 (“Apartments”).  (SAC ¶ 1.)  Plaintiffs are those who have been or are now tenants of the Apartments over the last four years.  (SAC ¶ 2.)  Defendants failed to correct numerous substandard conditions of which Defendants were or should have been aware during Plaintiffs’ respective tenancies.  (SAC ¶ 8.) 

            “Specifically, the deficiencies in the apartment building include, but are not limited to the failure to:

a. Maintain the building from cockroaches, flea, mite, bedbug, or other vermin infestation. Seal all cracks and crevices to eliminate cockroach and other vermin harborages as required by Health and Safety Code § 17920.3(J) and other applicable laws.

b. Provide and maintain approved screening (16 mesh or smaller) set in tight-fitting frames to all operable windows, and to all other openings in the exterior walls of buildings as required by California Civil Code § 1941.1 and other applicable laws.

c. Maintain all bathrooms, toilet rooms and their fixtures in good repair and free from corrosion as required by the California Building Standards Codes §§407.1 and 407.2.

d. Maintain the counters/drain boards for kitchen sinks, bathroom lavatories, and adjacent wall and/or floor surfaces in a manner to prevent water damages, and/or in a clean and sanitary condition and free from dirty or foreign materials. Health and Safety Code § l 7920.3(a)(13).

e. Maintain all exits, hallways, corridors, and stairways with required lighting.

f. Provide and maintain required Smoke Detectors as required by the California Building Standards Code §§907.2.3.6.l and 907.2.3.9.2 and all other applicable laws.

g. Replace broken smoke detectors as required by the California Building Standards Code §907.2.3.92 and all other applicable laws.

h. Maintain all doors, door frames and cabinet doors in good repair as required by the Health and Safety Code § l 7920.3(a)(l3).

i. Maintain all windows and window sashes in good repair as required by California Civil Code § 1941.1 and all other applicable laws.

j. Maintain all electrical equipment, including the service panel, subpanels, conduits, wiring, switches, outlets, fixtures in good repair Health and Safety Code§ 17920.33( d) .

k. Maintain or install approved hard-wired Smoke Detectors at the required locations California Building Standards Code §907.2.3. c.i.

l. Maintain all electrical switches, receptacles and other outlets with protective plates as required by the National Electrical Code 370-15 and other applicable laws.

m. Maintain all electrical outlets in bathrooms, and all electrical outlets in kitchens located within 6 feet of sinks, with ground fault interruption protection as required by the National Electrical Code 210-8 and other applicable laws.

n. Maintain all plumbing lines and plumbing fixtures free from defects. Correct any loose, leaky, clogged or otherwise faulty toilets, faucets, sinks, showers, bathtubs and plumbing lines as required by the Uniform Plumbing Code, §§302; 801; 907, the California Building Standards Codes §§407.2 and 407.3 and other applicable laws.

o. Maintain enamel surfaces on sinks and bathtubs in good repair as required by the Uniform Plumbing Code §901 and other applicable laws.

p. Maintain the wall areas adjacent to sinks, showers, and bathtubs in good repair as required by the Health and Safety Code § 17920.3.c and all other applicable laws.

q. Always provide and maintain the required central or individual room heating appliance in good repair and operable as required by the Health & Safety Code Section l 7920.3a.6 and other applicable laws.

r. Maintain the required mechanical or natural bathroom ventilation as required by Health & Safety Code Section 17920.3c and other applicable laws.

s. Maintain the required appliance venting system in a good and safe condition, and in conformance with applicable laws at the time of insulation as required by Health & Safety Code Section 17920.3.c.”  (SAC ¶ 9.)

Untimely Opposition and Reply Papers

            “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.”  (CCP § 1005(b).)  This is calculated by counting backwards from the hearing date and excluding holidays and weekends.  (CCP §§ 12-12(c).)  The court may refuse to consider a late-filed paper.  (Cal. Rules of Court, Rule 3.1300(d).) 

            Here, the opposition was filed on December 28, 2022 – a mere five court days before the instant hearing.  Accordingly, the opposition is untimely.  Similarly, the reply was filed on January 3, 2022 – a mere two court days before the instant hearing.  Although the opposition and reply are untimely, the Court – in its discretion – will consider the untimely opposition and untimely reply.  The parties are forewarned that the Court will disregard future untimely filings.

Legal Standard

Pursuant to Code of Civil Procedure section 2025.420, “[b]efore, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order.  (CCP § 2025.420(a).)  Upon the showing of “good cause” the Court may make “any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.”  (CCP § 2025.420(b).) 

“The concept of good cause calls for a factual exposition of a reasonable ground for the sought order.”  (Goodman v. Citizens Life & Cas. Ins. Co. (1967) 253 Cal.App.2d 807, 819.)  Generally, “the burden is on the party seeking the protective order to show good cause for whatever order is sought.”  (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) 

The court shall impose monetary sanctions against any party or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the party acted with substantial justification or that the imposition of sanctions would otherwise be unjust. (CCP § 2025.420(h).)

Meet and Confer Requirement

The court may limit discovery “pursuant to a motion for a protective order by a party or other affected person. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”  (CCP § 2017.020(a); CCP § 2025.420(b).)  Pursuant to Code of Civil Procedure section 2016.040, “[a] meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”  (CCP § 2016.040.)

            The Court notes that Defendant Winstar has fulfilled the meet and confer requirement.  (Nashalian Decl. ¶¶ 9-14, Exhs. D-H.)

            On August 31, 2022, Plaintiffs first noticed the deposition of Chief Operating Officer (“COO”), Rachel Teller set for October 19, 2022.  (Nashalian Decl. ¶ 8, Exh. C.)  On October 6, 2022, Defense Counsel for Winstar sent meet and confer letter discussing taking Winstar’s COO deposition off-calendar as an improper “apex” deposition.  (Nashalian Decl. ¶ 9, Exh. D.)  Between October 6, 2022 and October 10, 2022, the parties met and conferred through email and telephonically.  (Nashalian Decl. ¶ 10, Exh. E.)  On October 14, 2022, Plaintiffs notified Defendant Winstar that they were taking all the noticed depositions off calendar including the deposition of Winstar’s COO.  (Nashalian Decl. ¶ 11, Exh. F.) 

            On December 6, 2022, Plaintiffs re-noticed Winstar’s COO’s deposition for January 3, 2022.  (Nashalian Decl. ¶ 12, Exh. G.) Defense Counsel for Winstar emailed Plaintiffs’ Counsel following up on the prior meet and confer efforts.  (Nashalian Decl. ¶¶ 13-14, Exh. H.)  However, Plaintiffs responded that they intended to move forward with Winstar’s COO’s deposition.  (Nashalian Decl. ¶ 14, Exh. H.)

Discussion

            Defendant Winstar seeks a protective order preventing the deposition of COO, Rachel Teller as an improper “apex” deposition.

            As the Court of Appeal explained in Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, “‘apex’ depositions …, when conducted before less intrusive discovery methods are exhausted, raise a tremendous potential for discovery abuse and harassment.”  (Id. at p.1287.)  As a matter of first impression, the Court of Appeal in Liberty Mutual Ins. Co. concluded that “it amounts to an abuse of discretion to withhold 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.”  (Ibid.)  The Court of Appeal held that:

[W]hen a plaintiff seeks to depose a corporate president or other official at the highest level of corporate management, and that official moves for a protective order to prohibit the deposition, the 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. These would 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. [Citation.] Should these avenues be exhausted, and the plaintiff make a colorable showing of good cause that the high-level official possesses necessary information to the case, the trial court may then lift the protective order and allow the deposition to proceed.

(Liberty Mutual Ins. Co., supra, 10 Cal.App.4th at p.1289.)

            Winstar’s COO is a corporate official at the highest level of management as she is the Chief Operating Officer for Winstar.  (Teller Decl. ¶ 1.)  As a central figure in Winstar, Teller signed the verifications for Winstar and defendants Sylmar Foothill LLC and Eden Garden Apartments, LLC.  (Teller Decl. ¶ 3; Nashalian Decl. ¶ 5, Exh. B.)  However, Teller does not have any personal knowledge of the instant action but rather “the extent of [her] knowledge of the facts relevant to this case is limited to what [she] was told by Winstar's other agents and employees, who themselves directly dealt with the conditions and events at issue in this case.”  (Teller Decl. ¶ 3.)  As Teller is a corporate official at the highest level of management for Winstar and does not have any direct personal knowledge of the instant action, a protective order is warranted. 

            In opposition, Plaintiffs concede that “Rachel Teller’s Chief Operating Officer Position does warrant the granting of a Protective Order”.  (Opp. at p.1:24-25, [capitalization removed].)  However, Plaintiffs contend that Teller does have personal and direct knowledge of material issues.  “Between September 26, 2019, and approximately March 2020, Winstar and the subject property owners were issued multiple ‘Notices of Violations’ and ‘Administrative Citations’ by the City of Downey for their failure to abate uninhabitable conditions at the subject property.”  (Opp. at p.2:19-22.)  These notices were mailed directly to Teller.  (Opp. Exhs. A-C.)  Thus, Plaintiffs contend that pursuant to these notices Teller has direct knowledge of material issues that Plaintiffs can only obtain through a deposition of Teller.  The Court disagrees.

            In Liberty Mutual Ins. Co., the Court of Appeal addressed a near identical argument by the real party which contended that the deposition of the president and chief executive officer was “‘directly implicated’ in the ‘issues presented in the instant litigation.’ Real party claimed that because [the president and ceo] was copied on two letters written by her counsel to Liberty Mutual officials, [the president and ceo] thus had ‘constructive notice’ of the alleged” claims by the real party in interest.  (Liberty Mutual Ins. Co., supra,10 Cal.App.4th at p.1286.)  However, the Court of Appeal concluded that “[i]t would be unreasonable to permit a plaintiff to begin discovery by deposing, …—especially if we were to accept real party's argument that the mere act of copying the chief executive officer with a few pieces of correspondence creates ‘constructive notice’ justifying the deposition.”  (Id. at p.1287.)

            Here, Plaintiffs merely note that some of the notices regarding the apartments were sent to Winstar’s CCO Teller.  Plaintiffs fail to provide any evidence that Teller actually handled or addressed the notices in any way.  As noted above, Teller states that she has no personal knowledge of the events at issue in the instant action.  (Teller Decl. ¶¶ 3-4.)  In fact, during the two deposition sessions of the Housing Division of the City of Downey’s person most knowledgeable, Teller was not even mentioned.  (Supp. Nashalian Decl. ¶ 4, Exhs. A-B.)  Rather, the Housing Division of the City of Downey’s person most knowledgeable noted that he would frequently speak with the property manager Jordan Tsabari.  (Supp. Nashalian Decl. ¶ 4, Exh. A, [Lauwers Depo. at pp.48:17].)  This evidence demonstrates that the notices were merely sent to Teller and were actually addressed by a different individual, the property manager Jordan Tsabari.  This may serve as a basis for some discovery to Teller to determine her knowledge through written interrogatories or some other less invasive discovery method.  However, Plaintiffs have made no attempt to do so.  (Nashalian Decl. ¶ 15.)  Therefore, in sum, Plaintiffs fail to make a colorable showing of good cause to depose Teller.    

CONCLUSIONS AND ORDER

Based on the forgoing, Defendant Winstar Properties, LLC’s motion for a protective order as to the deposition of Winstar Properties, LLC’s Chief Operating Officer Rachel Teller is GRANTED.

Moving Party is to give notice to all parties and file proof of service of such within three court days.

DATED: January 5, 2023                                                       ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court