Judge: Stephen P. Pfahler, Case: 22STCV38178, Date: 2024-04-23 Tentative Ruling

Case Number: 22STCV38178    Hearing Date: April 23, 2024    Dept: 68

Dept. 68

Date: 4-23-24 c/f 3-6-24                                                      

Case: 23STCV38178 (related to 23STCV13772)

Trial Date: 6-17-24

DEPOSITION

MOVING PARTY: Plaintiff, Richard Tipping, et al.

RESPONDING PARTY: Defendant, City of Los Angeles, et al.

RELIEF REQUESTED

Motion to Compel the Deposition of City of Los Angeles Police Department Chief of Police

SUMMARY OF ACTION

Houston Tipping, son of Shirley Huffman and Richard Tipping, was a Los Angeles Police Department officer, suffered fatal head injury when a fellow officer conducted an exercise causing blunt force trauma to the head and neck of Officer Tipping during a “training exercise” purportedly to simulate a fall from a certain height. The training program was part of the Arrest and Control Bicycle Training Program. Officer Tipping was not provided any protective gear normally associated with such a training program, and other padding was not properly placed.

Plaintiffs allege that at the time of the fatal injury, Officer Tipping was investigating a fellow officer allegedly responsible for sexually assaulting a person, thereby providing motivation to an officer to cause harm to Officer Tipping.

On December 7, 2022, Shirley Huffman, Houston Tipping, and the Estate of Houston Tipping, filed a complaint for Battery, Whistleblower Retaliation, Bane Act, and Wrongful Death against City of Los Angeles and Richard Tipping (nominal defendant). On June 14, 2023, Richard Tipping and the Estate of Houston Tipping filed a complaint for Assault, Battery, Violation of Civil Code section 52.1, Violation of Civil Rights 42 USC 1983, Bane Act, and Wrongful Death against City of Los Angeles, and David Cuellar.

On March 6, 2024, the court entered the stipulation of the parties to consolidate the actions.

RULING: Denied.

Plaintiffs Richard Tipping and the Estate of Houston Tipping moves to the compel the deposition Michel Moore, Chief of Police for the City of Los Angeles Police Department. Plaintiffs represent two prior efforts to take the deposition, and now seeks a court order.

Plaintiffs served a Notice of Deposition for November 7, 2023. City of Los Angeles refused to produce Chief Moore. Plaintiffs maintain now that Chief Moore intends to retire, apex doctrine no longer applies. Plaintiffs seek the deposition on grounds that Chief Moore was directly aware of Control Bicycle Training Program as well as direct department policies. Plaintiffs also contend Chief Moore expressed very specific knowledge of the circumstances and cause of death. The court electronic filing system shows no opposition at the time of the tentative ruling publication cutoff. In correspondence prior to the motion, City of Los Angeles objected on grounds of “apex” witness rules. Plaintiffs submitted an extensive reply maintaining the Apex doctrine no longer applies given the retirement of Chief Moore, and contending Plaintiff sufficiently met and conferred in seeking to schedule the deposition prior to filing the motion. Plaintiff then contends City of Los Angeles “deliberately delayed” any deposition, now requiring a court order. Notwithstanding the admitted retirement of Chief Moore, Plaintiff offers extensive argument on the need to compel the “Apex” employee.

“It 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. (Citations.)” [¶] “‘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.]’ (Citation.)” (Nagle v. Superior Court (1994) 28 Cal.App.4th 1465, 1467–1468; see Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1289.) It is undisputed that Chief Moore was an apex level government entity director. As admitted by Plaintiff, the apex doctrine no longer applies however, in that Moore retired from the Police Chief position.

The deposition notice was only served on the City of Los Angeles, the employer of Moore at the time. [Declaration of Bradley Gate, Ex. A.] Again, Moore is no longer employed by the City of Los Angeles due to retirement. While the motion remains unopposed, the court lacks authority to order a former employer to produce a former employee for deposition. (Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1398.) Plaintiffs present no other alternative basis to compel the deposition of Moore. The unopposed motion is therefore DENIED.

Trial currently set for June 17, 2024.

Plaintiffs to provide notice.