Judge Lynne M. Hobbs, Case Number: 24STCV08308, Date: 2024-11-21 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 24STCV08308, Date: 2024-11-21 Tentative Ruling

Case Number: 24STCV08308 Hearing Date: November 21, 2024 Dept: 61

MICHAEL CLINKUNBROOMER, INDIVIDUALLY, et al. vs COUNTY OF LOS ANGELES, et al.

TENTATIVE

Defendant Robert Luna’s Motion for Protective Order is GRANTED, and Plaintiff is precluded from taking the deposition of Defendant Robert Luna until leave of court or unless Defendant’s agreement to the deposition is obtained.

Moving party to give notice.

DISCUSSION

A court may also, for good cause shown, and at the request of any deponent or “any affected natural person or organization,” make an order to protect any person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense resulting from a deposition notice. (Code Civ. Proc. § 2025.420, subd. (a), (b).)

Defendant Robert Luna (Defendant) seeks a protective order preventing his deposition, on the grounds that he is an apex employee without personal knowledge of the circumstances of the death of Decedent Ryan Clinkunbroomer (Defendant).

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.) However, 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].)

The parties do not dispute that Defendant, as the Los Angeles County Sheriff, is an apex employee at the head of a large law enforcement body. Defendant has thus shown good cause for the protective order, and it is Plaintiff Estate of Ryan Clinkunbroomer’s (Plaintiff) burden to show that Defendant has personal knowledge relevant to this case, as well as the exhaustion of less intrusive modes of discovery.

Plaintiff correctly notes that the claim for state-danger, pleaded against Los Angeles County and Defendant Luna, contains a subjective component, requiring proof that Defendants engaged in “deliberate indifference” to a known risk. (Martinez v. High (9th Cir. 2024) 91 F.4th 1022, 1030.) The cases cited by Defendant to support his insulation from deposition in fact acknowledge that the subjective knowledge of a named defendant establishes good cause where that subjectivity is an element of a claim against that defendant. (See Anderson v. County of Contra Costa (N.D. Cal., Mar. 9, 2017, No. 15-CV-01673-RS (MEJ)) 2017 WL 930315, at *4; Estate of Silva by and through Allen v. City of San Diego (S.D. Cal., Jan. 21, 2021, No. 18CV2282-L (MSB)) 2021 WL 211613, at *4.)

But Plaintiff has not shown, or made any attempt to show, efforts to discover the same relevant information by less intrusive means, and identifies no cases in which an apex deposition was permitted to proceed merely on the basis of subjectivity being an element of a claim, without prior efforts at less-intrusive discovery. Indeed, the Anderson and Estate of Silva cases cited above declined to permit the deposition of apex employees based on the plaintiff’s failure to exhaust less-intrusive modes of discovery. (Anderson, supra, 2017 WL 930315, at *4; Allen, supra, 2021 WL 211613 at *4.) Plaintiff in opposition argues that depositions serve a number of useful purposes that other discovery methods are not able to emulate, such as follow-up questions and the lack of premeditated answers formed in consultation with counsel. (Opposition at pp. 15–16.) Yet this is true of all depositions, and the apex-employee doctrine strikes the balance between convenience and institutional efficacy that governs depositions of high-ranking officials, such as that at issue here.

Defendant in reply advances new arguments, seeking a protective order against all discovery until Defendant’s next demurrer to the Second Amended Complaint is heard, and not before Plaintiff overcomes Defendant’s qualified immunity defense. (Reply at pp. 1–2, 5–8.) These arguments were not advanced in Defendant’s motion, and Plaintiff has had no opportunity to respond. This is despite the fact that Defendant had already filed a demurrer to the First Amended Complaint on August 16, 2024, well before the present motion was filed, and had advance notice of its arguments as a potential grounds for relief. The court declines to rule on these requests for wider relief, which are tardily advanced without fair notice to the other party.

The motion is therefore GRANTED, and Plaintiff is precluded from taking the deposition of Defendant Robert Luna until leave of court or unless Defendant’s agreement to the deposition is obtained.