Judge Lynne M. Hobbs, Case Number: 21STCV13089, Date: 2025-03-12 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 21STCV13089, Date: 2025-03-12 Tentative Ruling

Case Number: 21STCV13089 Hearing Date: March 12, 2025 Dept: 61

VIJAY SINGHAL vs CITY OF LOS ANGELES

Tentative

Defendant City of Los Angeles’s Motion to Quash Deposition and for Proective Order is GRANTED. The deposition notice is quashed, and a protective order is entered preventing the deposition of Ron Galperin, except by 24 written interrogatories, which shall be limited to the following topics:

(1) What, if any, communications did Mr. Galperin have with Plaintiff on how special funds were being used? If there were conversations, the details of where, when, who was present and what was said.

(2) Did Plaintiff ever communicate to Mr. Galperin conduct he (Plaintiff) believed was illegal?

(3) Mr. Galperin’s involvement in the investigation that led to Plaintiff’s termination, including but not limited to his interview with Javonne Lavender.

(4) Mr. Galperin’s involvement, if any, in the termination of Plaintiff’s employment.

(5) Did Mr. Galperin agree with the termination decision and if so, did he communicate that decision to anyone inside the controller’s office?

(6) What if any negative consequences did the controller’s office experience as a result of Plaintiff’s release of the “collaborate to create value report”?

(7)What if any steps did Mr. Galperin take, or direct people to take, to address the concerns of the collaborate to create value report?

Moving party to give notice.

Analysis

I. MOTION FOR TO QUASH DEPOSITION & FOR PROTECTIVE ORDER

In addition to serving written objections, “a party may also move for an order staying the taking of the deposition and quashing the deposition notice. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. The taking of the deposition is stayed pending the determination of this motion.” (Code Civ. Proc., § 2025.410, subd. (d).).” Additionally, “[t]he 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.” (Code Civ. Proc., § 2025.420, subd. (b).)

Defendant City of Los Angeles moves to quash the deposition notice served by Plaintiff Vijay Zinghal (Plaintiff) for former City Controller Ron Galperin, and further seeks a protective order preventing the deposition or else requiring that it be undertaken by a limited number of written interrogatories. (Motion at pp. 4–8.)

Defendant invokes the apex-employee doctrine, which was set out in the case Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282. In that case, a plaintiff sued a company and its CEO for various torts and attempted to depose the CEO. (Id. at pp. 1285–86.) But the only connections that the plaintiff could establish between the CEO and the action were plaintiff’s attempts to forward emails explaining his claims to the CEO, but which the CEO had never seen. (Id. at p. 1286.) The CEO thus declared that he lacked any relevant knowledge regarding the action. (Id. at p. 1285–86.) The court held as follows:

[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. (Id. at p. 1289.) In later cases, it has been explained that this 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 (1994) 28 Cal.App.4th 1465, 1468.)

“An exception will be made to this rule only when the deposing party makes two showings. First, the deposing party must show that the government official has direct personal factual information pertaining to material issues in the action. Second, the deposing party must also show the information to be gained from the deposition is not available through any other source.” (Contractors’ State License Board v. Superior Court (2018) 23 Cal.App.5th 125, 128 [applying Liberty Mutual to a government context].)

Defendant argues that Plaintiff has already taken extensive discovery, including deposition testimony and documentary evidence, concerning Galperin’s knowledge of Plaintiff’s complaints and his eventual termination. (Motion at pp. 4–7.) Plaintiff in meet-and-confer efforts identified the relevant categories of deposition to be (1) communications with Plaintiff regarding how certain funds were being used; (2) Plaintiff’s communications that certain decisions were illegal; (3) Galperin’s involvement in the investigation of Plaintiff that led to Plaintiff’s termination; (4) Galperin’s involvement in the termination; (5) communications Galperin had regarding the termination, (6) negative consequences to the department arising from Plaintiff’s complaints; and (7) steps taken to address the concerns in Plaintiff’s complaints. (Motion at p. 4; Neishlos Decl. Exh. L.)

Defendant contends that information concerning Plaintiff’s communications with Galperin can be derived from Plaintiff’s testimony, Defendant’s documentary production (including Galperin’s answers to written questions during the investigation of Plaintiff), and the depositions of a deputy city controller and Galperin’s then-chief of staff. (Motion at p. 4.) As to Galperin’s role in the investigation, Defendant contends that Plaintiff has already deposed a chief deputy city controller who testified to communications with Galperin regarding the investigation, as well as the chief management analyst who conducted the investigation. (Motion at p. 5.) Defendant argues that Plaintiff has already deposed the chief deputy controller who signed off on Plaintiff’s termination, and that Plaintiff has deposed witnesses who testified concerning Galperin’s feelings about Plaintiff’s termination. (Motion at pp. 5–6; Neishlos Decl. ¶¶ 2–6.) Thus Defendant argues that Plaintiff has alternative means to obtain the evidence sought by the deposition of Galperin.

Plaintiff in opposition argues that the apex-employee doctrine does not apply to former government officials — Galperin is no longer City Controller — and that the evidence heretofore obtained is no substitute for Galperin’s testimony concerning his own knowledge and intent. (Opposition at pp. 3–4.) However, Plaintiff’s argument on the first point is mistaken, as the very case cited for the proposition that the apex doctrine does not apply to former officials — Nagle v. Superior Court (1994) 28 Cal.App.4th 1465 — itself applied the doctrine to a former director of a California department. (Nagle, supra, 28 Cal.App.4th at p. 1467.) Nor does Plaintiff contest Defendant’s characterization of the evidence presented in its motion, including manifold evidence of Galperin’s knowledge of and intent in relation to Plaintiff’s actions.

Consideration of Galperin’s apex-employee status, and of his pertinent knowledge in relation to Plaintiff’s termination, warrants the quashing of the deposition notice and the entry of a protective order permitting his questioning to take place “by written, instead of oral, examination.” (Code Civ. Proc. § 2025.420, subd. (b)(6).) This form of relief was discussed in a prior informal discovery conference on this matter, and Defendant seeks it as an alternative mode of relief in the present motion. (Motion at pp. 7–8.) Plaintiff may depose Galperin by propounding 24 interrogatories for him to answer, concerning the following subjects, already outlined by Plaintiff in meet-and-confer correspondence: