Judge: John J. Kralik, Case: 19STCV18187, Date: 2022-07-29 Tentative Ruling

Case Number: 19STCV18187    Hearing Date: July 29, 2022    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Tim Simonec is alleged to be an individual with a disability.  Mr. Simonec alleges that on May 10, 2018, he was riding his motorized scooter southbound on the sidewalk when he was presented with perilous and hazardous conditions, including but not limited to a ramp with a dangerous height and insufficient clearance/space for him to pass safely with his scooter on the sidewalk in front of the property at 736 N. Buena Vista, Burbank, CA (“Buena Vista Property”), which is owned by Defendant Helen J. Griffen Trust.  He alleges that the dangerous condition was compounded and made even more hazardous by concrete blocks abutting from the Buena Vista Property, which unlawfully reduced the clearance space needed for him to safely pass the area in his electric scooter.  In an attempt to navigate around the ramp, Mr. Simonec was required to maneuver his scooter towards the left, which caused his scooter to come into contact with concrete blocks abutting from the Buena Vista Property and he was thrown onto the street with his scooter landing on top of him. 

Plaintiff Janet L. Simonec is the wife of Tim Simonec.  Mrs. Simonec alleges the 7^th cause of action for loss of consortium. 

The second amended complaint (“SAC”), filed March 17, 2022 2021, alleges causes of action for: (1) violation of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq.; (2) violation of California’s Disabled Persons Act, Civil Code, § 54; (3) violation of § 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq.; (4) dangerous condition of public property; (5) negligence; (6) premises liability; and (7) loss of consortium.  The 1^st to 4^th causes of action are asserted against City.  The 5^th and 6^th causes of action are asserted against all Defendants.  The 7^th cause of action is asserted against Defendant Toro Enterprises, Inc., Jerry Hannigan, Sean Castillo, Eileen D. Kenny individually and as successor trustee of the Helen J. Griffen Trust, and the Helen J. Griffen Trust. 

B.     Cross-Complaint

On July 3, 2019, Defendant/Cross-Complainant City of Burbank (“City”) filed a cross-complaint against the Helen J. Griffen Trust for: (1) indemnification; (2) apportionment of fault; and (3) declaratory relief.  On July 2, 2020, City filed an Amendment to the Cross-Complaint naming Eileen D. Kenny, individually and as successor trustee of the Helen J. Griffen Revocable Trust dated August 22, 1996 as Doe 1. 

C.     Motion on Calendar

            On June 8, 2022, City filed a motion to quash notice of deposition and production of documents to Justin Hess and for protective order. 

            On July 18, 2022, Plaintiffs filed an opposition brief.          

            On July 21, 2022, City filed a reply brief.

LEGAL STANDARD

            CCP § 2025.420 states in relevant part:

(a) Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.

(CCP § 2025.420(a)-(b).)

“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. [Citations.] The rule applies to officials summoned to testify as third parties as well as those who are named defendants. [Citations.]”  (Westly v. Superior Court (2004) 125 Cal.App.4th 907, 910.)  The Court of Appeal in Westly further stated:

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, 34 Cal.Rptr.2d 281.) 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.

(Id. at 911.)  To show that the exception applies, 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.”  (Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1289.) 

DISCUSSION

            City moves for an order quashing the notice of deposition and prohibiting the deposition of Burbank City Manager Justin Hess (“Mr. Hess”) on the grounds that Mr. Hess is an apex level witness, the highest-level management official in the City of Burbank, who may not be deposed absent a showing that he has unique knowledge that cannot be obtained through less intrusive means, including other witnesses or written discovery. 

Plaintiffs issued two notices of taking Mr. Hess’s deposition.  (See Mot., Exs. 4 and 7.)  In the second notice, Plaintiffs seek to depose Mr. Hess; no specification on the topics of the deposition are provided.  Plaintiffs also make 52 document requests of Mr. Hess. 

City’s counsel, Ashlee P. Clark, states that this action is based on claims of personal injury related to the condition of a sidewalk in the City of Burbank, which occurred on May 10, 2018.  (Clark Decl., ¶2.)  Ms. Clark states that Mr. Hess is currently Burbank’s City Manager and his tenure began in 2019—years after the City was involved with the project that is the subject of this litigation.  (Id., ¶3.)  She states that the City Manager is the highest administrative level position in the City of Burbank and is responsible for directing operations of the city.  (Id., ¶4.) 

            In opposition, Plaintiffs ask that the Court deny this motion.  Plaintiffs argue that they have been diligent in attempts to obtain information related to the sidewalk project and that they sought Mr. Hess’s deposition testimony because he had signed the agreement for Toro to serve as the contractor for the sidewalk project.  Alternatively, Plaintiffs request that the Court continue the hearing date to allow Plaintiff to receive relevant discovery from City that may resolve the issues presented in this motion.  Plaintiffs argue that they recently served discovery on the City that addresses Mr. Hess’s involvement and knowledge of the sidewalk project and they gave a 30-day extension to City to respond to discovery, such that responses will be due by August 15, 2022. 

            In reply, City argues that Plaintiffs have only presented a single agreement related to the City’s 2013 sidewalk project, which Ms. Hess signed before the project began and that this alone is not sufficient to compel his deposition.  (See Clark Reply Decl., ¶¶5-6.)  City argues that Plaintiff failed to take steps to determine the scope of Mr. Hess’s knowledge prior to noticing his deposition and City filing this motion, and that it was only after this motion that Plaintiff propounded 156 special interrogatories and 126 document demands from June 9-17, 2022 to determine Mr. Hess’s knowledge of the bid schedule and his involvement in the sidewalk project. (Id., ¶4.) 

            Based on the papers presented to the Court, it appears that there is no dispute that Mr. Hess is Burbank’s City Manager and the highest-level management official.  At this time, it is disputed to what extent Mr. Hess was involved with the sidewalk project—the location where Plaintiff Tim Simonec suffered his injury.  While Mr. Hess may have only recently entered into his role as the City Manager in 2019—admittedly after the subject incident occurred—this does not foreclose the possibility that he may have been employed by the City of Burbank in a different capacity and was involved with the sidewalk project with a different job title.  Plaintiffs only recently propounded discovery to ascertain information about Mr. Hess’s involvement in the sidewalk project, prior to noticing his deposition, despite City’s objections to the deposition notices and City’s informal attempts to inform Plaintiffs about Mr. Hess’s high-level position.  (See Clark Decl., ¶¶13, 16, 20, 21; Exs. 2, 5, 8, 9.) 

            Thus, the Court will grant City’s motion to quash the notice of deposition.  However, by entering this order, the Court is not barring Plaintiff from re-noticing Mr. Hess’s deposition following the completion of discovery about his involvement in or knowledge of the sidewalk project, if any.  If Plaintiffs re-notice the deposition following discovery, City may again file a motion and set forth grounds to quash any later-served notices of deposition, as well as seek a proactive order.

No sanctions were requested.

CONCLUSION AND ORDER

Defendant City of Burbank’s motion to quash notice of deposition and production of documents to Justin Hess and for protective order is granted. 

Defendant shall give notice of this order.