Judge: Olivia Rosales, Case: 22NWCV00296, Date: 2022-09-13 Tentative Ruling

Case Number: 22NWCV00296    Hearing Date: September 13, 2022    Dept: SEC

KB WESTCHESTER BUILDING, LLC v. LATIGO, INC.

CASE NO.:  22NWCV00296

HEARING:  9/13/22 @ 9:30 AM        

#Add-On

TENTATIVE RULING

Plaintiff KB Westchester Building, LLC’s motion to quash deposition notices and for protective order is GRANTED.

Moving Party to give NOTICE.

Plaintiff KB Westchester Building, LLC (“KB”) moves to quash deposition and for a protective order pursuant to CCP § 2025.410(c).)

“[A] party may also move for an order staying the taking of the deposition and quashing the deposition notice.”  (CCP § 2025.410(c).)  The court may, “for good cause shown,” issue any protective 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).)  Such an order may include, “but is not limited to” requiring that (1) “the deposition not be taken at all”; (2) the “deposition be taken at a different time”; (3) that the “deposition be taken at a place other than that specified in the deposition notice”; (4) that “certain matters not be inquired into” or the “scope of the examination be limited to certain matters”; and/or (5) that “the deposition be taken only on certain specified terms and conditions.”  (Id.) Moreover, “[o]n motion for a protective order by the party designating an expert witness, and on a showing of exceptional hardship, the court may order that the deposition be taken at a more distant place [than 75 miles] from the courthouse.” (CCP § 2034.420.)  The party seeking a protective order bears the burden to show good cause for the requested order.  (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal. App. 4th 26, 318.)

This is an unlawful detainer action filed by KB, who owns commercial real property.  On January 24, 2019, KB entered into a lease with Latigo to rent the premises.  (Complaint, ¶ 6.)  KB alleges that Latigo failed to pay rent and vacate the premises.  (Complaint, ¶ 12.)

Defendant noticed the depositions of Zachary Zalben and Michael Kaplan.

KB contends a protective order should issue because Zalben and Kaplan are apex executives.  (Lombardi Decl. ¶2-6, Ex. 1-5; Rojas Decl. ¶¶2-5, Nicol Decl. ¶¶2-5.)  KB contends that Zalben and Kaplan merely signed the lease, and have no personal knowledge about the asset or communicated with the client. (Rojas Decl. ¶6; Nicol Decl. ¶6.)

In opposition, Defendant contends that Zalben signed the lease, and initialed every page of the lease, except one page that is in dispute in this case, relating to the commencement and end date of the lease.  (Vasseghi Decl., Ex. 9.) 

As Defendant admits, the commencement and end dates in the original lease were left blank and was later modified when the prior tenant vacated the premises.  Both Plaintiff and Defendant subsequently signed Exhibit D.  It is unclear what additional information Defendant hopes to obtain from Zalben who signed the original lease, but did not sign the later modification. Exhibit D was signed by a KB representative.

At this juncture, the court declines to compel the apex deposition of Zalben and Kaplan.  A party seeking to depose a corporation’s apex official must first show that the official possesses unique, relevant knowledge which is not available through less intrusive discovery means. (Liberty Mutual Ins. Co. v. Superior Ct. (1992) 10 Cal.App.4th 1282, 1289.)

Further, Michelle Rojas and Corri Nicol attest that they are in charge of administration and overseeing Latigo’s tenancy.  (Rojas and Nicol Decls., ¶ 4.)  Defendant did not attempt to depose either of these individuals.

Accordingly, the motion is GRANTED and a protective order will issue.