Judge: Shirley K. Watkins, Case: 21STCV23492, Date: 2023-03-22 Tentative Ruling

If ALL parties submit on the tentative, then no appearance is necessary unless some other matter (i.e., Case Management Conference) is on calendar. It is not necessary to call the court to request oral argument. Oral argument is permitted on all tentative rulings.

Case Number: 21STCV23492    Hearing Date: March 22, 2023    Dept: T

            [TENTATIVE] ORDER:  Defendant LaserAway, LLC’s Motion for Protective Order is GRANTED.

Introduction

            Defendant LaserAway, LLC (Defendant) moved for protective order against Plaintiff Steven Romero’s (Plaintiff) deposition demand of Defendant’s upper-level executives, Brock Heckman (Chief Operating Officer), Scott Heckman (Chief Executive Officer), and Todd Heckman (President) (collectively, Deponents.)

            Discussion 

“[W]e hold that when 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 Insurance Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1289 (Liberty).) Less-intrusive methods include: interrogatories directed to the high-level official; the deposition of lower-level employees; and the organizational deposition of the corporation itself through the deposition of corporation’s most qualified officer or employee.  “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.”  (Ibid.)

Despite Plaintiff’s contention otherwise, it is not Defendant’s initial burden to show lack of knowledge on the part of their officers.  Plaintiff has the burden to show that the apex officer possesses “unique or superior personal knowledge of discoverable information.”  Plaintiff argued that the Deponents would have information as to the commingling of funds, failures in observing corporate formalities between Defendant and Co-Defendants LaserAway Holdings, LLC (Holdings) and LaserAway Medical Group, Inc. (Medical), and the lack of sufficient liability insurance held by Defendant.  Preliminarily, Plaintiff did not allege alter ego liability.  The vicarious liability theories alleged in the Complaint is respondeat superior, negligent entrustment, and agency.  (Compl. par. MV-2.)  Even if alter ego liability were alleged, Plaintiff failed to present facts showing that Deponents have unique and superior knowledge on the issues of alter ego liability or liability insurance.  Plaintiff’s citation to the deposition testimony of Chick Powers, Defendant’s Executive Vice President of Operations, and Camilla Eng, Defendant’s General Counsel, mainly show their lack of knowledge on the subject matter of Defendant’s corporate governance.  Mr. Powers and Ms. Eng’s testimony showed that they lacked knowledge on the identities of the officers at Holdings and Medical.  Ms. Eng’s testimony stated that she did not know the identities of Medical’s officers or the ownership structure of Medical; the structure of how payments from customers at Medical’s stores are processed.  Ms. Eng’s testimony only showed that she knew that Medical’s officers included two physicians and that Defendant and Medical have separate bank accounts.  There was no testimony related to any insurance coverage.  Plaintiff’s Counsel’s declaration only attested to his belief that Defendant’s liability policy was insufficient to cover damages in this action.  (Christopher Bulone Decl. par. 3.)  The two deposition transcripts only showed that Plaintiff did not depose the person most knowledgeable as to Defendant’s, Medical’s or Holdings’ corporate structure, financial structure or insurance coverage.  Plaintiff’s evidence is insufficient to show the Deponents’ unique and superior knowledge on Defendant’s, Medical’s, and Holding’s corporate structure, financial structure, or insurance coverage.  Without facts showing that Deponents have unique and superior knowledge of Defendant’s compliance with corporate formalities, financials, or insurance coverage, Plaintiff has not sufficiently met their initial burden.  Further, the depositions of Mr. Powers and Ms. Eng are insufficient to show that Plaintiff exhausted less-intrusive discovery methods to obtain discoverable information on the three topics. 

Lastly, Plaintiff argued that the Liberty case is distinguishable to this action because Defendant is not a national or international corporation.  However, the other excerpts of Ms. Eng’s deposition testimony appears to show otherwise.  In a very broad sense, it would appear Defendant is a “national” company because Ms. Eng testified that Defendant provided managerial services to entities using the LaserAway brand name located outside of California.  (Bulone Decl., Exh. 2 pgs. 62-70.)  Plaintiff’s evidence does not support their contention.

Because Plaintiff has not shown that the Deponents possess unique and superior knowledge and has not shown the use of less-intrusive discovery methods, Plaintiff has not met their initial burden of proof.

Defendant’s motion for protective order is GRANTED.