Judge: Jon R. Takasugi, Case: 21STCV38436, Date: 2023-04-24 Tentative Ruling

Case Number: 21STCV38436    Hearing Date: April 24, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s motion for a protective order is GRANTED.

            On 10/19/2021, Plaintiffs Fiona John, shelly Perks, Lisa Marquez, and Harold Hayes (collectively, Plaintiffs) filed suit against Methodist Hospital of Southern California (MHSC or Defendant), alleging:  (1) age discrimination; (2) retaliation in violation of Labor Code section 1102.5; (3) retaliation in violation of FEHA; (4) retaliation in violation of Health and Safety Code section 1278.5; (5) retaliation in violation of Labor Code section 4310; (6) failure to prevent discrimination and retaliation; (7) interference and retaliation in violation of the California Family Rights Act (CFRA); and (8) wrongful termination.

            Now, Defendant seeks a protective order.

Discussion

Defendant seeks a protective order prohibiting Plaintiffs from taking depositions of Defendant’s highest level of corporate management (collectively, the C-Suite Executives), including:

-         President/ Chief Executive Officer Dan F. Ausman

-         Senior Vice President/ Chief Operating Officer Steven Sisto

-         Senior Vice President/ Chief Strategy and Integration Officer Clifford Daniels

-         Senior Vice President/ Chief Human Resources John Peeples, and

-         Senior Vice President/ Chief Medical Officer Bala Chandrasekhar, M.D.

Defendant argues that: (1) the C-Suite Executives are apex officials; (2) Plaintiffs have failed to exhaust less instructive means of discovery to obtain the information sought, and (3) Plaintiffs cannot demonstrate good cause to support that the C-Suite Executives possess unique or superior personal knowledge of discoverable information concerning plaintiffs' terminations of employment, and allegations of retaliation and discrimination.

The Court agrees.

The apex deposition rule in California 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, 910. “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.” (Contractors’ State License Bd. v. Superior Court (2018) 23 Cal.App.5th 125, 131.) Top-level corporate executives are generally considered apex witnesses for the same reasons. See Liberty Mut. Ins. Co. v. Superior Court (1979) 10 Cal. App. 4th 1282.

Compelling reasons to abrogate the apex deposition rule exist if the deposing party establishes that (1) the official has direct personal factual information pertaining to material issues in the action, and (2) the information sought is not available through any other source.  (Westly, supra, 125 Cal.App.4th at 911; People ex rel. Lacey v. Robles (2020) 44 Cal.App.5th 804, 826-827.) This 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 p. 910-11.)

Here, the C-Suite executives named for deposition are not referenced in Plaintiffs’ Complaint, and Plaintiffs have not deposed any of the many lower-level employees and Union representatives that they themselves identified in their Complaint and in discovery as having direct knowledge of the facts and circumstances supporting their claims of retaliation, discrimination, and unlawful harassment (i.e., Plaintiffs’ direct supervisors, HR managers involved in the subject terminations, Union representatives, and Plaintiffs’ coworkers.)

In opposition, Plaintiffs argue that the apex rule does not apply because the Hospital is not a national or international corporation and because CEO Dan Ausman is no longer employed by the Hospital. This argument has no merit. However, Plaintiff has not cited any case law to show that the apex witness rule is limited to companies of a certain size or only to current executives.

Moreover, Plaintiffs have not taken the Hospital’s PMK deposition, nor have Plaintiffs propounded interrogatories to any of the C-Suite Executives to further explore the scope of their knowledge of Plaintiffs’ terminations and allegations of retaliation and discrimination. As a result, the Court readily concludes that Plaintiffs have not exhausted less intrusive discovery methods. (Westly, supra, 125 Cal.App.4th at p. 910-11.)

Based on the foregoing, Defendant’s motion for a protective order is granted.

It is so ordered.

Dated:  April    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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