Judge: Loren G. Freestone, Case: 37-2019-00027996-CU-PL-CTL, Date: 2023-09-14 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 14, 2023

09/15/2023  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Product Liability Discovery Hearing 37-2019-00027996-CU-PL-CTL MITRIONE VS BREG INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Non-Party Bradley Mason's motion for a protective order is DENIED.

Plaintiff Rebecca Mitrione subpoenaed Mason for a deposition. Mason is the former CEO of Defendant Breg Inc. Mason moves for a protective order stopping his deposition. The motion is premised on the following 'apex doctrine': '[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, . . . the trial court should issue the protective order and first require the plaintiff to obtain the necessary discovery through less-intrusive methods.' (Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1289.) The 'apex doctrine' is based, in part, on the recognition that routinely allowing such depositions would severely impede the high-level official's 'time and exigencies of his everyday business.' (See Ross v. Superior Court (2022) 77 Cal.App.5th 667, 680 [applying a similar rule to agency heads and top governmental executives].) It is unclear the extent to which the rule applies to individuals like Mason, who are retired and therefore no longer face that same threat. (See id. at p. 681 [apex doctrine applied because the deponent 'was district attorney at the time [plaintiff] sought to depose him'].) But even assuming the doctrine applies, Mitrione has met her burden. The evidence indicates that Mason has unique and superior personal knowledge related to the Polar Care 500 device, which is not available through other means of discovery. Mason argues that the Polar Care 500 device is irrelevant because Mitrione was allegedly injured by the Polar Care Glacier. But Mitrione alleges that the 500 was simply rebranded as the Glacier, and that they share the same design defect. Early on in this case, Breg itself referred to the 500 as 'the same product' as the Glacier. (ROA #14 at 7:15.) Information about the 500 is, at a minimum, reasonably calculated to lead to the discovery of admissible evidence.

(See Elsworth v. Beech Aircraft Corp. (1984) 37 Cal.3d 540, 555.) The motion for a protective order is therefore denied. Mason shall sit for a deposition on a mutually agreeable date within 30 days.

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