Judge: Stephen I. Goorvitch, Case: 19STCV11497, Date: 2023-11-06 Tentative Ruling

Case Number: 19STCV11497    Hearing Date: February 15, 2024    Dept: 39

Adrian Komorowski v. Charter Communications, LLC

Case No. 19STCV11497

Motion for Protective Order

Case Management Conference

            Plaintiff Adrian Komorowski (“Plaintiff”) filed this employment action against Charter Communications, LLC (“Charter”) and Farid Golshan (“Golshan”) (collectively, “Defendants”) on April 3, 2019.  Plaintiff seeks to depose Tony Guevara, who is Charter’s Senior Vice President, Sales Call Centers.  Defendant moves to a protective order, which Plaintiff opposes.  The motion is granted. 

Code of Civil Procedure section 2025.420 provides, “The court, for good cause shown, may make any order that justice requires to protect any . . . deponent . . . from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense . . . .”  (Code Civ. Proc., § 2025.420.)  Per Liberty Mutual Insurance Co. v. Superior Court (1992) 10 Cal.App.4th 1282, “it amounts to an abuse of discretion to withhold a protective order when a [party] seeks to depose a corporate president, or corporate officer at the apex of the corporate hierarchy, absent a reasonable indication of the officer’s personal knowledge of the case and absent exhaustion of less intrusive discovery methods.”  (Liberty Mutual Ins. Co. v. Superior Court  (1992) 10 Cal.App.4th 1282, 1287.) 

Plaintiff argues that Guevara’s testimony is relevant because Plaintiff complained to him about his termination and speculates that he has personal knowledge of relevant facts.  Specifically, Plaintiff’s counsel provides the following proffer: “Plaintiff reached out to Tony Guevara, senior vice president of sales, after he was terminated and informed Gevara [sic] that he was wrongfully terminated and wanted his job back.”  (Declaration of Twila S. White, ¶ 11.)  According to the declaration of Rachel Mahony, Plaintiff sent an email to Guevara, dated April 9, 2018, a copy of which was attached to her declaration.  (See Declaration of Rachel Mahony, ¶¶ 5-6 & Exh. #9.)  Plaintiff’s counsel confirms this in her opposition to the motion.  (Plaintiff’s Opposition, pp. 5-6.)  Plaintiff’s counsel proffers no evidence that Guevara replied to this email or had any correspondence or conversation with her client. 

Plaintiff does not establish that Guevara has any personal knowledge about the circumstances of his termination.  To the contrary.  Defendant advances evidence that Guevara forwarded the complaint to the appropriate group within Charter, where it was assigned to Mahony for investigation.  (See Declaration of Ashley N. Arnett, Exh. G, pp. 57:9-58:6.)  Mahony testified that she prepared an investigative report, but provided Guevara with only a one-page executive summary.  (See id., Exh. H, p. 199:2-11.)  David Acosta, the human resources manager at Plaintiff’s worksite, testified that Nancy Carbone, the supervisor at Plaintiff’s worksite recommended termination, and that Thomas Smiley, Vice President of Human Resources, played a role in Plaintiff’s termination.  (See Declaration of Twila S. White, Exh. B, pp. 117:11-14, 193:21-25.)  The email correspondence shows that Guevara was copied on emails but none establishes that had any personal knowledge concerning the decision to terminate Plaintiff.  (See id., Exh. A.)

Plaintiff’s counsel argues that Acosta “testified that Gevara [sic] was brought up to speed regarding Plaintiff’s allegations and his termination.”  (Declaration of Twila S. White, ¶ 3.)  There are two problems with this argument.  Plaintiff’s counsel provides no citations to the record.  The Court’s own review of the record reveals that Acosta merely testified that “I think” Tony Guevara approved the decision to terminate Plaintiff.  (See id., Exh. B, pp. 156:10-17, 194:1-7.)  Putting that aside, the mere fact that Guevara approved the termination or was “brought up to speed” concerning the termination does not establish that he had personal knowledge of the circumstances of Plaintiff’s termination.

Nor does Plaintiff establish that he exhausted “less intrusive means of discovery,” i.e., taking lower level depositions.  The Court notes that Guevara is a senior official, who was above Plaintiff’s immediate supervisor (Farid Golshan), the human resources manager of Plaintiff’s work site (David Acosta), the supervisor of Plaintiff’s work site (Nancy Carbone), and the Vice President of Human Resources (Thomas Smiley).  In order to take Guevara’s deposition, Plaintiff would first need to take the deposition of Nancy Carbone, then satisfy the standard to take an apex deposition of Thomas Smiley, and then satisfy the standard to take an apex deposition of Tony Guevara.  Plaintiff’s counsel is attempting to “jump to the top” without good cause. 

Plaintiff’s counsel represents that she requires additional time to locate, subpoena, and depose three former employees of Defendant (Reanna Nelson, Kara Huberman, and Milad Shaikh).  (See Declaration of Twila S. White, ¶¶ 5-6.)  Plaintiff’s counsel admits that Defendant provided the last known addresses for these former employees.  (Id., ¶ 6.)  However, Plaintiff’s counsel’s declaration does not satisfy the requirements of Code of Civil Procedure section 437c(h).  Plaintiff’s counsel does not explain when she and her client learned of the importance of these witnesses, and when she first attempted to subpoena them for depositions.  Plaintiff’s counsel does not explain clearly what “facts essential to the opposition” would be developed from the depositions of Reanna Nelson and Kara Huberman.  Therefore, the Court declines to treat Plaintiff’s opposition as a proper request to reopen discovery and continue the MSJ hearing. 

CONCLUSION AND ORDER

            Based upon the foregoing, the Court orders as follows:

            1.         Defendant’s motion for a protective order is granted.  Based upon this record, Plaintiff is not entitled to take an apex deposition of Tony Guevara, the Senior Vice President of Sales for three reasons.  First, Plaintiff’s counsel does not establish that he had any direct communication with her client.  Second, Plaintiff’s counsel does not establish that he has any personal knowledge of the circumstances of Plaintiff’s termination.  Third, Plaintiff’s counsel has not exhausted less intrusive means of discovery, which is required before taking the deposition of a senior vice president.

            2.         The Court advances and continues the hearing on Defendant’s motion for summary judgment from March 1, 2024, to March 15, 2024, at 8:30 a.m.  Plaintiff’s opposition shall be due based upon statutory deadlines.

            3.         The Court advances the hearing on Plaintiff’s motion to reopen discovery and continue the MSJ hearing from May 13, 2024, to March 15, 2024, at 8:30 a.m.  

            4.         The Court advances and vacates the final status conference and trial dates.  The Court shall hold a case management conference on March 15, 2024, at 8:30 a.m. after it rules on the motions. 

            5.         Defendant’s counsel shall provide notice and file proof of such with the Court.