Pablo Vasquez v. York Healthcare & Wellness Centre, LP., et al.

DEFENDANTS’ MOTION FOR PROTECTIVE ORDER PRECLUDING THE DEPOSITION OF SHLOMO RECHNITZ

 

MOVING PARTIES: Defendants York Healthcare & Wellness Centre, LP; G4 Wellness GP, LLC

RESPONDING PARTY(S): Plaintiff Pablo Vasquez

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Pablo Vasquez brought this action against Defendants York Healthcare & Wellness Centre, LP; G4 Wellness GP, LLC; and Shlomo Rechnitz .  Plaintiff was a resident of a skilled nursing facility owned and/or operated by Defendants.  Plaintiff alleged that Defendants failed to use reasonable care, resulting in a severe unstageable pressure sore. Plaintiff alleged causes of action for (1) elder abuse and (2) negligent hiring and supervision.  Plaintiff is now deceased; Belen Ramirez has been appointed Plaintiff’s Successor in Interest.

After Plaintiff’s death, Plaintiff’s spouse Maria De Los Angeles Vasquez, and his child, Belen Ramirez, brought a separate action against Defendants for wrongful death.  These cases have been consolidated.

Defendants now move for a protective order to prevent the deposition of Defendant Shlomo Rechnitz.  Plaintiff opposed.

TENTATIVE RULING:

Defendants’ Motion for a Protective Order as not requiring his deposition is DENIED.  Requests (b), (c), (d) and (e) are GRANTED.  The remaining request are DENIED.

Moving party to give notice, unless waived.  

DISCUSSION:

Defendants’ Motion for Protective Order Precluding the Deposition of Shlomo Rechnitz

A. Legal Standard

Where good cause is shown, courts may enter protective orders limiting depositions. “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.” (Code Civ. Proc., § 2025.420(b).) Courts have considerable discretion in granting and crafting protective orders. (Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal.App.4th 584, 588.) A court may quash a subpoena entirely or partially and issue an order to protect parties, witnesses, or consumers from unreasonable or oppressive demands, including violations of privacy. (Code Civ. Proc., §1987.1; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2008) ¶ 8:598. See also generally Cal. Prac. Guide: Civ. Trials & Ev. (The Rutter Group 2008) ¶1:91.) The burden of proof is generally on the party seeking the protective order to show good cause for whatever order is sought.  (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

B. Analysis

Defendants ask for a protective order precluding the deposition of Shlomo Rechnitz.  In the alternative, they seek to limit the deposition with the following qualifications: 

(a) Mr. Rechnitz may appear only after less intrusive means of discovery fail to produce the requested information; 

(b) Personal financial information, financial information of any business entity including profit and loss or net worth information, questioning regarding facilities or entities not included in the matters for which the deposition is being offered, inquiries regarding allegations not at issue to the instant matters, regardless of whether they may or may not be relevant to other pending matters, or questioning regarding other patients or other responsible parties is, by way of example but not limited to these topics, strictly off limits and are not to be pursued in the deposition; 

(c) The deposition shall be scheduled on an agreed upon date and time to commence on or after 10:00 a.m.;

(d) The deposition shall occur via videoconferencing due to the current status of the COVID-19 pandemic 

(e) After conclusion of the deposition, Mr. Rechnitz be allowed to read the deposition transcript, make any changes he deems necessary and to sign the deposition under penalty of perjury without the need of going to the court reporter’s office.

(f) Mr. Rechnitz may not be served in any manner, whether such service relates to this action or any other action, during and/or as a result of the appearance stated in condition (a).

(See Notice of Motion.)

Rechnitz is the sole manager of Defendant G4 Wellness GP, LLC. (See Plaintiff’s Exh. 2). Defendant G4 Wellness GP, LLC is the general partner of Defendant and Facility-licensee York Healthcare & Wellness Centre, LP. (Id., Exh. 3.) Plaintiffs, in seeking his deposition, contend that Rechnitz, “in his role as the sole manager of Defendant G4 Wellness GP, LLC, clearly has relevant and discoverable information regarding Plaintiff’s allegations of alter ego and single enterprise.”  (Opp. 4: 2-4.)  They seek information to support their allegations that Rechnitz “uses the entity Defendants as a mere conduit to funnel money to his pockets at the expense of the safety and welfare of the residents at the Facility.”  (Opp. 2: 13-14.)

Defendants contend that Rechnitz has no knowledge of the day-to-day operations or knowledge of patient care at York Healthcare nor any relevant knowledge as to those entities Plaintiff believes him to own, operate, or otherwise influence.  Defendant argues the court should issue a protective order precluding Rechnitz’s deposition because he is a corporate executive protected by the “Apex Doctrine.”  Because of the potential for abuse by plaintiffs, courts are sometimes willing to protect high-level corporate officers from depositions when the officer has no first-hand knowledge of the facts of the case of where the officer’s testimony would be repetitive.  (Liberty Mut. Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1289.)   

In Liberty Mutual, the plaintiff sought to depose the defendant insurance company’s president and chief executive officer as part of her initial discovery demands.  There, plaintiff asserted the president was “directly implicated” in the matter by virtue of Plaintiff’s counsel having copied the president on two complaint letters.  The president asserted he had no knowledge of the plaintiff’s claim, and the letters “would have been automatically rerouted to a lower level employee;” he never saw the letters.  The court noted that allowing a party to depose a corporate officer at the “apex” of the corporate hierarchy before less intrusive discovery has been conducted raises a “tremendous potential for discovery abuse and harassment.”  (Id. at 1287.)  Thus, “it amounts to an abuse of discretion to withhold a protective order when a plaintiff seeks to depose a corporate president, or corporate officer at the apex of a corporate hierarchy, absent a reasonable indication of the officer’s personal knowledge of the case and absent exhaustion of less intrusive discovery methods.”  (Id.)  

The discovery dispute at hand is distinguishable from that presented in Liberty Mutual. Importantly, Defendants have not shown that Rechnitz is at the “apex” of the corporate hierarchy in the way contemplated by Liberty Mutual.  Because Defendant has not shown the doctrine applies, there is no requirement that Plaintiffs employ less intrusive means of discovery, nor must plaintiff show that Shlomo Rechnitz is in possession of superior or exclusive knowledge of discoverable information.  

Defendants have otherwise failed to meet its burden of showing good cause for the protective order it seeks.  (See Fairmont Ins. Co, supra, 22 Cal.4th at 255.)  Defendants have provided no evidence showing any unwarranted annoyances, embarrassment, oppression, undue burden and expense, and commercial information.  (See Code Civ. Proc. § 2030(e).)  

Although Defendants’ Notice of Motion includes a list of alternative requests if Rechnitz’s deposition goes forward, the motion itself does not address these issues.  It is not clear why some of these requests are necessary at this time.  

However, some of these requests appear to be reasonable. For example, (b) and (c) appear to be fair requests.  Moreover, (c) is certainly the unilateral right of the deponent under the new laws created by the COVID-19 pandemic.  Request (e) is the standard custom and practice in Southern California.  

Accordingly, Defendants’ Motion for a Protective Order as not requiring his deposition is DENIED.  Requests (b), (c), (d) and (e) are GRANTED.  The remaining request are DENIED.

C. Sanctions

Under CCP 2025.420(h), “the court shall impose a monetary sanction…against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Finding both parties acted with substantial justification, the court declines to award monetary sanctions.

IT IS SO ORDERED.

Moving parties to give notice, unless waived.  

Dated:   September 21, 2022 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.