Judge: Laura A. Seigle, Case: 19STCV24126, Date: 2022-10-04 Tentative Ruling

Case Number: 19STCV24126    Hearing Date: October 4, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTION TO COMPEL

            Plaintiffs Robert Ray and Irene Ray moved to compel the deposition of the person most qualified at Triple A Machine Shop, Inc. pursuant to Code of Civil Procedure section 2025.230.  In particular, Plaintiffs seek an order compelling Triple A to produce Ann Marie Mori as its PMQ witness because she verified discovery responses for Triple A.  Alternatively, Plaintiffs request an order that Triple A prepare someone else to serve as its PMQ.  Triple A argues it filed for bankruptcy in 2010, in 2014 the bankruptcy court issued a decree discharging the trustee and closing out Triple A, and the company no longer exists.  Triple A contends that because the company no longer exists, it has no officer, director, managing agent, employee or agent to testify on its behalf.

            Code of Civil Procedure section 2025.230 requires a corporation that is a party to the action to “designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf.”  This language “applies by its language only to current officers, directors, managing agents, or employees.”  (Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1398.)  The company’s duty is limited “to producing the most knowledgeable person currently in its employee and making sure that that person has access to information and documents reasonably available within the corporation.”  (Ibid.) 

            Plaintiffs contend that under Melendrez v. Superior Court (2013) 215 Cal.App.4th 1343, when a corporation no longer exists, the corporation must appoint a new officer, director, managing agent, employee, or agent to serve as it PMQ, just like it appointed Mori to verify its discovery responses.  (Motion at p. 8.)  In Melendrez, the defendant corporation was in bankruptcy and was acting pursuant to its reorganization plan.  (Melendrez, supra, 215 Cal.App.4th at p. 1355.)  The court held that even though the company any no officer, director or managing agent, it had attorneys who were its agents, and those attorneys could verify discovery responses.  (Id. at p. 1354.)  If the company existed in name only such that its insurance policies were its only asset, then the insurers held the attorney-client privilege.  (Id. at p. 1356.)  The insurers could then decide whether to waive the privilege and have an attorney verify the discovery responses.  (Id. at pp. 1357-1358.)

            The court in Melendrez did not address the issue of a PMQ witness.  The reasoning in Melendrez was focused on obtaining verified discovery responses from a nonexistent corporation.  The rationales of Maldonado and section 2025.230 are different.  The purpose of the PMQ statute “ ‘is to eliminate the problem of trying to find out who in the corporate hierarchy has the information the examiner is seeking.’ ”  (Malconado, supra, 94 Cal.App.4th at p. 1395.)  Thus, the company must make sure the PMQ witness “has access to information and documents reasonably available within the corporation.”  (Ibid.)

Here, there is no company anymore and there has not been one for the last eight years.  All that remains is an insurance policy.  Apparently the only person alive who has knowledge about Triple A is Albert Engel who worked at Triple A many years ago.  Plaintiffs can take his deposition by subpoenaing him.  However, taking the deposition of Mori as the Triple A PMQ will not accomplish the purpose of finding out “who in the corporate hierarchy has the information” Plaintiffs are seeking.  There is no “corporate hierarchy” to inquire about.  Mori’s only role in this case is signing verifications, and there is no evidence she knows anything else about Triple A.  Because there are no employees at Triple A for her to speak with, she cannot educate herself on the topics.  The only source of information about Triple A apart from Albert Engel seems to be some boxes of documents.  Plaintiffs can read those documents as well as Mori can.

The motion is DENIED.

The moving party is to give notice.