Judge: John C. Gastelum, Case: 21-01203250, Date: 2023-08-09 Tentative Ruling

Motion for Protective Order

Tentative Ruling:  Defendant Trader Joe’s Company (“Defendant”) moves for a protective order prohibiting Plaintiff Brenda Titus (“Plaintiff”) from taking the depositions of Jon Basalone and Ben Myers on the grounds they are high-ranking officers and Plaintiff has noticed their depositions solely for the purpose of harassment, embarrassment, and annoyance.

As an initial matter, the Court notes Plaintiff is no longer seeking the deposition of Myers at this time. Thus, the Motion as to Myers is MOOT.

Under the apex deposition rule, a party is prohibited from deposing a high-ranking official unless the deponent has unique or superior personal knowledge of relevant information. (Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1287.) “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 v. Superior Court (2004) 125 Cal.App.4th 907, 911.)

Basalone is Defendant’s President of Stores. There is no dispute that Basalone is an apex witness. Plaintiff must therefore show that he has direct personal knowledge of relevant information and that information is not available through any other source.

Defendant does not dispute that Basalone received an email regarding an anonymous voice message regarding Trader Joe’s response to the Black Lives Matter movement, obtained options for how to address the message, and presented those options to the operations group. Defendant contends that this was the extent of Basalone’s involvement in Plaintiff’s termination and her attempts to claim that he participated in the decision to terminate her have no merit. Defendant argues Christy Hughes, a member of the operations group, had full autonomy to make the decision on how to proceed and it was Hughes who decided to terminate Plaintiff.

Plaintiff argues that Basalone was at the center of the discussions regarding her termination, as evidenced by the fact that he was the first to voice the opinion that Plaintiff should be terminated, he involved Human Resources in the process when he was forwarded the voice message, and he took the options presented by Mead to the operations group for the final decision. Plaintiff also argues  Basalone’s testimony is crucial to the issue of punitive damages and whether Basalone ratified the corporate employer’s conduct, and no one else could testify as to his motivation and state of mind.

The Court finds Plaintiff’s arguments unpersuasive. First, she argues Basalone was the first to express that Plaintiff should be terminated. However, he sent the email stating that he does not think the employee who left the voice message should be working for Defendant when Plaintiff’s identity was not yet known. Plaintiff did not leave a name with her voice message and her identity was not discovered until after an investigation. Thus, his comment that whoever left the voice message should not be working for Defendant was not directed at Plaintiff.

Second, there is no support for her contention that Basalone was involved in the decision to terminate her. The evidence presented shows Basalone received options from Mead on how to respond to the voice message and Basalone took those options to the operations group. Mead testified she was not sure whether Basalone was involved in the decision and Plaintiff has presented no evidence that he was. Nor has Plaintiff presented any evidence to show that Christy Hughes was not the one who had full autonomy to make the decision on whether to terminate Plaintiff. Thus, Plaintiff has not shown that Basalone has direct personal knowledge regarding her termination that would not be available from any other source.

Third, while Plaintiff is correct that the Court denied Defendant’s Motion for Summary Adjudication as to punitive damages because Basalone could be considered an officer or managing agent of Defendant for purposes of Civil Code section 3294(b), it does not follow that Basalone’s testimony is required for Plaintiff to make such a showing. Whether Basalone or any other officer, director, or managing agent of Defendant ratified the decision to terminate Plaintiff can be investigated through other sources and less burdensome means.

Thus, the Motion for Protective Order is GRANTED.

Defendant to give notice.