Judge Lynne M. Hobbs, Case Number: 22STCV10458, Date: 2023-07-10 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 22STCV10458, Date: 2023-07-10 Tentative Ruling

Case Number: 22STCV10458 Hearing Date: January 16, 2024 Dept: 30

SOFIA JAMORA vs JAXSON HAYES

TENTATIVE

Defendant’s motion for a protective order precluding the taking of Robert Pelinka’s deposition is GRANTED. Moving party to give notice.

Legal Standard

CCP section 2025.420(a) provides that “[b]efore . . . a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order.” (CCP § 2025.420(a).) “The 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.” (CCP § 2025.420(b).) In fashioning a protective order, a court has the discretion to, among other things, order “[t]hat the deposition not be taken at all,” “[t]hat the deposition be taken only on certain specified terms and conditions,” or “[t]hat the deponent’s testimony be taken by written, instead of oral, examination.” (CCP § 2025.420(c)(1), (5), (6).)

An apex deposition is where a plaintiff “leap-frogs” to the apex or pinnacle of a corporation and attempts to depose a corporate high-level executive that does not have personal knowledge or involvement in the litigation, without seeking discovery first from lower-level employees who are involved in the daily operations of the corporation. (Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1287.) Such depositions have a “tremendous potential for discovery abuse and harassment,” when conducted before less intrusive discovery methods are exhausted to establish that the apex officer has any actual personal knowledge relevant to the case given the practical reality that “[t]he head of a large national corporation will generally not have knowledge of a specific incident or a case handled several levels down the corporate pyramid.” (Id. at 1288.)

“[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. (Liberty Mutual Ins. Co., supra, 10 Cal. App. 4th at 1289.)

Plaintiff, as the deposing party, bears the burden of showing that: (1) the deponent has direct personal factual information pertaining to material issues in the action; and (2) the information to be gained from the deposition is not available through any other source. (Id. at 1289.)

Discussion

Per the apex deponent rule, Defendant seeks a protective order to prevent Plaintiff from deposing Robert Pelinka.

First, the parties dispute whether Robert Pelinka is a high-level executive. Pelinka is Vice President of Basketball Operations and General Manager of the Los Angeles Lakers. (Pelinka Decl., ¶ 1.)

The Court finds that as Vice President of Basketball Operations, and as General Manager of the Los Angeles Lakers, Pelinka is an apex deponent. The Court in Liberty Mutual expressly stated that other officials at the highest level of management can be apex deponents, not just CEOs or Presidents. In any event, Plaintiff has not explained why Pelinka as General Manager of the Lakers, would not be one of the highest-ranking officials of the Lakers.

Next, Defendant argues that Pelinka does not have unique or superior personal knowledge of discoverable information. Plaintiff argues that Pelinka represented to the media in July of 2023 the following:

"I think the most important thing is we take those things very seriously and do a full vetting process," Pelinka said. "Jaxson has been very sincere (with) his apologies around handling that and has moved beyond it to where he's had a year or two in the NBA playing after it. It was something that we felt like he owned, took responsibility for it, and is going to be a better person on the other side of it.”

(McCoy Decl., Ex. A).

However, Defendant has attached the declaration of Pelinka, attesting under penalty of perjury, that he did not speak with Hayes about the incident at issue in this case, and that is not the way the Lakers would investigate or “vet” a potential player who the Lakers may be considering signing as a free agent. The “vetting” of Hayes was done by an outside contractor consultant to the Lakers, which is the Lakers’ normal protocol. (Pelinka Decl., ¶ 4.) The Lakers were not asked to participate in any way in the NBA’s confidential investigation concerning Hayes and the alleged incident that occurred in 2021, because Hayes was not employed by the Lakers in 2021 (or in 2022), and was instead employed by the Pelicans. (Id., ¶ 5.)

The Court finds that Plaintiff has not shown good cause that Pelinka has unique or superior personal knowledge of discoverable information. The only basis that Plaintiff relies on is Pelinka’s statement to the media regarding Defendant’s full vetting process. But Pelinka has offered his testimony to show that he was not the one who vetted Defendant, and it was done by a third party, and further, that he never spoke to Defendant regarding the incident. Thus, he does not have unique or superior personal knowledge of discoverable information.

Next, Plaintiff argues that Pelinka’s deposition is required because Plaintiff is entitled to know who in the Lakers organization did a "full vetting process" regarding Defendant Jaxon Hayes' arrest, sentencing, and general off-court conduct towards Plaintiff. If Pelinka was not the individual who conducted the investigation he can testify as such and identify the individual who was responsible for the "full vetting process” of the facts that are the subject of the instant action.

The Court finds that Plaintiff has not met her burden to show this information is not available through another source. First, as noted by Pelinka in his declaration, no one in the Lakers’ organization did the vetting. Pelinka stated it was done by a third-party consultant. Next, Plaintiff has not shown that she has attempted to, for example, depose the Person Most Knowledgeable of the Lakers, or propounded written discovery to Defendant in order to ascertain who this third-party consultant is before attempting to depose Pelinka. Plaintiff can propound interrogatories or conduct depositions of lower-level employees who have facts material to this case.

Thus, Defendant’s motion for a protective order precluding the taking of Pelinka’s deposition is granted.