Judge: Serena R. Murillo, Case: 19STCV33158, Date: 2023-05-09 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

Case Number: 19STCV33158    Hearing Date: May 9, 2023    Dept: 31

TENTATIVE

Plaintiffs’ Motion to Compel the Deposition of Undersheriff April Tardy is DENIED.

Legal Standard

Code of Civil Procedure section 2025.450, section (a) states in the relevant part:¿¿¿¿ 

¿¿¿ 

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”¿ 

¿¿¿ 

(Code Civ. Proc., § 2025.450, subd. (a).) The motion must also “set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice” and “be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.450, subds. (b)(1), (2).)¿¿¿¿  

Discussion

Plaintiffs move to compel the deposition of the current Undersheriff April Tardy. Plaintiffs assert that Undersheriff Tardy was the adjudicator at Plaintiffs’ Skelly hearings where she issued the disciplinary action taken against them due to the Kennedy Hall incident. (Mot. at 5:22-6:2.) Undersheriff Tardy also testified before the Civilian Oversight Commission (COC) hearings regarding deputy gangs at the Los Angeles County Sheriff’s Department (LASD). (Id.)

Plaintiffs assert that as the adjudicator at their Skelly hearings, Undersheriff Tardy retaliated against the Plaintiffs by stating that disciplinary action taken against them was warranted because the Plaintiffs failed to report the Kennedy Hall incident. A claim Plaintiffs deny. On the contrary, Plaintiffs assert that they did report the incident and faced retaliation. (Mot. Ex. 2 and 3.)

Plaintiffs assert that because of her role within the LASD and her participation in the Skelly hearings, Undersheriff Tardy possesses personal knowledge of the retaliation Plaintiffs’ experience and her testimony is necessary to establish the chain of events that are part of Plaintiffs’ causes of action. Plaintiffs also wish to depose Undersheriff Tardy on her testimony before the COC regarding her admission that the Banditos are a gang and that Individual Defendants are “shot callers” for the gangs.

The County opposes Plaintiffs’ Motion on the basis of the Apex Doctrine bars the Plaintiffs from taking the deposition of Undersheriff Tardy.

              The County’s Opposition on the Basis of the Apex Doctrine

A valid objection under 2025.410 pertains to the errors or irregularities in the deposition notice and must be made three calendar days before the deposition date. (Code Civ. Proc., § 2025.410 subd. (b).) Moreover, written objections to the deposition notice do not stay the taking of the deposition, and the party objecting to the deposition taking place must move for a motion to quash the deposition notice and stay the taking of the deposition. (Code Civ. Proc., § 2025.410 subd. (c).) The party may also move for a protective order. (Code Civ. Proc., § 2025.420(b).)

Instead of moving to quash Plaintiffs’ deposition notice or moving for a protective order, the County opposes Plaintiffs’ motion on the basis that Undersheriff Tardy’s testimony is barred by the Apex Doctrine. The Court notes that all cases cited by the parties considering the issue of the apex doctrine were in the context of a protective order rather than in opposition to a motion to compel.

However, “[i]t is the general rule in both California and federal courts that the heads of agencies and other top governmental executives are normally not subject to depositions.” (Nagle v. Superior Court (1994) 28 Cal.App.4th 1465, 1467–1468.) “An exception to this general rule exists concerning top officials who have direct personal factual information pertaining to material issues in an action. [Citations.] [¶] A top governmental official may, however, only be deposed upon a showing that the information to be gained from such a deposition is not available through any other source. [Citations.]” (Id. at 1468 citing Church of Scientology of Boston v. I.R.S. (D.Mass.1990) 138 F.R.D. 9, 12.) Thus, the Court will consider whether the Apex doctrine serves to oppose a motion to compel Undersheriff Tardy’s deposition.

First, the Court agrees that the Apex Doctrine applies to Undersheriff Tardy as she is the Undersheriff of the LASD. (See K.C.R. v. County of Los Angeles (C.D. Cal., July 11, 2014, No. CV 13-3806 PSG SSX) 2014 WL 3434257, at *4 [finding that the position of LASD Undersheriff as a high-ranking government official subject to the Apex Doctrine].)

i.                    Personal Knowledge

Undersheriff Tardy asserts that she was not involved in the investigations conducted by the Internal Criminal Investigation Bureau and the Internal Affairs Bureau (“IAB”) into the Kenney Hall incident. (Tardy Decl. ¶ 18, 19.) Undersheriff Tardy also asserts that the discipline of certain Plaintiffs based on the IAB investigation was imposed by Commander Richard Sheer and that she reviewed Commander Shear’s discipline as part of the Skelly hearings. (Id. ¶ 20.)

Moreover, Undersheriff Tardy was an adjudicator at the Skelly hearings , but the Commander charged with imposing discipline as part of that hearing. 

As to the information regarding the Civilian Oversight Commission (COC) testimony, the Court agrees that the Plaintiffs have failed to show that Undersheriff Tardy has unique firsthand factual knowledge. Undersheriff Tardy’s testimony was based on the reports she reviewed related to the investigation into the Banditos and the Kennedy Hall incident, not firsthand knowledge. (Tardy Decl. ¶ 24.) The Plaintiffs also fail to show that the information they seek to obtain from Undersheriff Tardy regarding her testimony at the COC cannot be obtained by other means. 

ii.                  Less Intrusive Discovery

“An exception to the [Apex Doctrine] exists only when the official has direct personal factual information pertaining to material issues in the action and the deposing party shows the information to be gained from the deposition is not available through any other source.” (Westly v. Superior Court (2004) 125 Cal.App.4th 907, 911.)

The County argues that the Plaintiffs have not sought discovery through less burdensome sources such as serving written discovery about their Skelly hearings. (Tokoro Decl. ¶ 6.) Moreover, despite deposing 31 witnesses the Plaintiffs have not asked the deponents about their Skelly hearings. The County makes a similar argument regarding Undersheriff Tardy’s COC testimony.

The Court agrees that the Plaintiffs fail to present evidence that the information they seek is not available through other sources or that they have exhausted other means of discovery before moving to depose Undersheriff Tardy.

Therefore, the Court agrees that the Plaintiffs have failed to show that Undersheriff Tardy’s deposition should be compelled. The Court DENIES Plaintiffs’ Motion.

Conclusion

Plaintiffs’ Motion to Compel the Deposition of Undersheriff April Tardy is DENIED.

Moving party is ordered to give notice.