Judge: Kevin C. Brazile, Case: 21STCV17431, Date: 2023-07-26 Tentative Ruling

Hearing Date: March 1, 2024

Case Name: Shams v. City of Los Angeles Dept. of Water and Power, et al.

Case No.: 19STCV00828

Matter: Motions to Quash Notice to Appear (2x)

Moving Party: Defendants City of Los Angeles, Henry James Williams, Glenn Barry, 

Zebbra Corbin, and Ana Romero

Responding Party: Plaintiff Saiara Shams

Notice: OK

Ruling: The Motions to Quash are granted.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

This is an employment action.  Defendants City of Los Angeles, Henry James Williams, Glenn Barry, Zebbra Corbin, and Ana Romero seek to partially quash two notices to appear and produce documents at trial that were issued by Plaintiff Shams.

The first Motion and notice pertain to 54 of 75 witnesses that Defendants’ HR has confirmed are not managers, directors, or officers of LADWP.  Defendants contend that these 54 witnesses must be subpoenaed and that a notice to appear is insufficient because these individuals are not parties, or directors, officers, or managing agents of LADWP, or individuals that directly benefit from the prosecution or defense of this action.  (Code Civ. Proc. § 1987(b).) 

Plaintiff makes no showing that the subject witnesses are properly subject to the notice to appear.  Therefore, the first Motion to Quash is granted.

The second Motion seeks to partially quash a notice to appear as to seven witnesses that Defendants contend should not provide testimony because they are apex witnesses without personal or superior knowledge of the facts underlying this action.  

The individuals at issue are as follows: 

(1) Marty Adams – General Manager and Chief Engineer of LADWP 

(2) Simon Zewdu – Assistant General Manager of LADWP 

(3) Aram Benyamin – Chief Operating Officer of LADWP/Assistant General Manager (4) Renette “Renee” Anderson – Director of Equal Employment Opportunity Services of LADWP/Executive Assistant to the General Manager 

(5) Arnold Esqueda – Director of Security Services of LADWP 

(6) Linda Ikegami – Chief Accounting Employee/Assistant to the General Manager 

(7) Sherry Morimoto – Head of Ethics and Compliance of LADWP

“[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. (§ 2025, subd. (d)(6).) 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 v. Superior Court (1992) 10 Cal.App.4th 1282, 1289.)  In short, there must be “a reasonable indication of the officer’s personal knowledge of the case and . . . exhaustion of less intrusive discovery methods.”  (Id. at p. 1287.)

Plaintiff argues that Defendants failed to establish that these individuals are actually apex witnesses; the “apex” rule applies only to depositions; and Renette Anderson has knowledge relating to this suit—specifically, she “was a Director of the Equal Employment Opportunity Services when Plaintiff submitted several complaints of discrimination, harassment and retaliation. Accordingly, she was the head of any investigation that took place into Plaintiff’s complaints to the EEOS department and prepared and signed the actual report of investigation into Plaintiff’s complaint of discrimination and retaliation on November 16, 2021. She made decisions to close several investigations of Plaintiff’s discrimination complaints and was an integral part of determining what if any action should be taken as a result of Plaintiff’s discrimination complaints.”

The Court sees no reason for the apex rule to apply only to depositions.  It makes little sense that apex individuals are protected from depositions but not from giving testimony within a trial.  

Further, the Court finds that the necessary showing has been made that the individuals at issue are top government employees for whom the apex rule is applicable.

Plaintiff has not addressed the propriety of obtaining testimony from anyone other than Anderson.  Therefore, the six other individuals need not appear for trial.

With respect to Anderson, who is apparently the only individual that was deposed, the deposition testimony cited by Defendants shows that she answered some questions by only reviewing documents because she did not otherwise have personal knowledge.  On the other hand, Plaintiff failed to cite any evidence whatsoever.  The Court, thus, concludes that Plaintiff failed to carry her burden.

In sum, the Motions to Quash are granted.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.