Judge: Theresa M. Traber, Case: 20STCV42104, Date: 2022-12-09 Tentative Ruling

Case Number: 20STCV42104    Hearing Date: December 9, 2022    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     December 9, 2022                  TRIAL DATE: April 10, 2023

CASE:                         Ozelia Harris v. Pomona Unified School District, et al.

CASE NO.:                 20STCV42104           

MOTION TO QUASH SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS

MOVING PARTY:               Defendants Pomona Unified School District and Rebecca Norwood and non-parties Darren Knowles, Amy McElwain, and Renee Black

RESPONDING PARTY(S): Plaintiff Ozelia Harris (Untimely)

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for employment discrimination that was filed on November 3, 2020. Plaintiff alleges that Defendants engaged in retaliation and harassment against her on the basis of her use of medical leave and/or her perceived disability.

            Defendants move to quash a set of subpoenas for personal appearances and production of documents.

TENTATIVE RULING:

            Defendants’ Motion to Quash Subpoenas is GRANTED.

            The Court also conditions its ruling on the subpoena to Amy McElwain on the payment of $60 in filing fees within 10 days of the date of this order.

DISCUSSION:

            Defendants move to quash a set of subpoenas for personal appearances and production of documents.

Multiple Motions

As a preliminary matter, the Court observes that Defendants filed one motion in connection with three subpoenas, of which only two remain at issue. Multiple motions should not be combined into a single filing.¿(See¿Govt. Code,¿§ 70617(a)(4) [setting forth the required filing fee for each motion, application, or any other paper or request requiring a hearing].) Each of these subpoenas should have been the subject of a single motion. The Court therefore conditions its ruling on the subpoena to Amy McElwain on the payment of an additional $60 in filing fees.

Untimely Opposition

            Plaintiff filed an opposition to this motion on December 1, 2022, six court days before the date of the hearing on this Motion. Pursuant to Code of Civil Procedure section 1005(b), any opposition to this motion should have been filed nine court days before the hearing. (Code Civ. Proc. § 1005(b).) Nine court days before December 9, 2022 is November 28, 2022. Plaintiff’s opposition is untimely. As Defendant has objected to the late opposition in the reply brief, and Plaintiff has provided no justification for the delay, the Court refuses to consider Plaintiff’s opposition in ruling on this motion.

Legal Standard

            Code of Civil Procedure section 1987.1 provides, in relevant part:

If a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b),h . . . may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

(Code Civ. Proc. § 1987.1(a).) There is no meet and confer requirement set forth in Code of Civil Procedure section 1987.1.

Analysis

            Defendants move to quash a set of trial subpoenas issued by Plaintiff to several individuals with accompanying requests for production. Since the original motions were filed, the parties have narrowed the remaining issues as follows:

Subpoena to Darren Knowles: Personal Appearance at Trial;

Subpoena to Amy McElwain: Personal Appearance at Trial.

Defendants contend that these individuals should not be compelled to testify under the apex witness doctrine.

            As set forth in Ross v. Superior Ct of Riverside County:

Despite the otherwise broad availability of discovery, “[t]he general rule in California and federal court is that agency heads and other top governmental executives are not subject to deposition absent compelling reasons.” [citations] “The general rule is based upon the recognition that ‘... an official's time and the exigencies of his everyday business would be severely impeded if every plaintiff filing a complaint against an agency head, in his official capacity, were allowed to take his oral deposition. Such procedure would be contrary to the public interest, plus the fact that ordinarily the head of an agency has little or no knowledge of the facts of the case.’” [citations].

“This rule has been applied in numerous cases involving an array of constitutional officers, board members, and agency heads” [citations]. And the rule applies regardless of whether the official is a named defendant or a third party [citations], or “whether the official gained the information sought while in his or her present position or while serving in prior, lower ranking positions at the agency” [citations]. “Thus, where a party seeks to depose a high government official, and the official moves for a protective order, the burden is on the deposing party to show that compelling reasons exist for permitting the deposition.” [citations].

“An exception will be made to this rule only when the deposing party makes two showings. First, the deposing party must show that the government official ‘has direct personal factual’” ¿ as opposed to legal ¿ “‘information pertaining to material issues in the action.’” [citations] “Second, the deposing party must also show ‘the information to be gained from the deposition is not available through any other source.’” [citations].

(Ross v. Superior Court of Riverside Cnty. (2022) 77 Cal.App.5th 667, 679-80.) Mr. Knowles is the Interim Superintendent for the entire school district, and Ms. McElwain is the Director of Risk Management for the district. Defendants contend that these witnesses are protected under the apex witness doctrine as agency heads. According to Defendants, Plaintiff has never shown or proffered evidence either that the Interim Superintendent or the Director of Risk Management has personal knowledge of material factual information, or that any relevant information sought cannot be obtained from a less burdensome source.

            As to Mr. Knowles, the Court agrees that the apex witness doctrine is applicable on its face as to his position as head of the school district. As Plaintiff has not offered a timely response to this motion, Plaintiff has not demonstrated that Mr. Knowles has direct, personal, factual, and material information, which is not available through another  source. The subpoena to Mr. Knowles therefore should be quashed.

            As to Ms. McElwain, the Court disagrees with Defendants’ contention that her testimony is protected under the apex witness doctrine. Defendants have not shown this witness to be a constitutional officer, board member, or agency head, nor do Defendants cite any examples where a Director of Risk Management for a school district was found to be a “high government official” subject to the apex witness rule. A mere conclusory assertion that she is a “top government official” is insufficient to demonstrate that the subpoena should be quashed.

Defendants also argue that Ms. McElwain lacks any personal knowledge of the matters at issue, and that, as the principal liaison between the district and its counsel regarding claims under the Government Torts Act, any information regarding this case that Ms. McElwain would possess would be in the form of attorney-client communications, which are absolutely privileged. (Evid. Code § 954.) These arguments are more compelling. The attorney-client privilege is broadly construed, and the burden is on the party seeking disclosure to demonstrate that what is sought is not privileged. (See Gordon v. Superior Court (1997) 55 Cal.App.4th 1546, 1557.)  As Plaintiff has not properly responded to this motion, the Court finds that Plaintiff has not carried her burden of demonstrating that the information sought is not privileged. Thus, Defendants have shown that the subpoena to Ms. McElwain should be quashed on this basis.

            Although the Court does not consider Plaintiff’s untimely opposition, the Court also observes that Defendants, in their reply brief, state that they are willing to stipulate to the authenticity of the District’s documents that were produced in response to Plaintiff’s discovery requests. Thus, to the extent that Ms. McElwain’s testimony is sought for the specific purpose of authenticating these documents, a subpoena for appearance at trial is not required.

CONCLUSION:

            Defendants’ Motion to Quash Subpoenas is GRANTED, but the Court conditions its ruling on the subpoena to Amy McElwain on the payment of $60 in filing fees within 10 days of the date of this order.

            Moving Parties to give notice.

IT IS SO ORDERED.

Dated: December 9, 2022                               ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@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.