Lowy Development Corp. v. Superior Court

Opinion

FEINERMAN, P. J. The issue in this original proceeding is whether a court may issue a protective order excluding other corporate officers from attending the deposition of a fellow corporate officer when the corporation is a party to the action.

Facts

Petitioner Lowy Development Corporation (Lowy), described by the respondent court as “a small, family, closely-held corporation, in which all of the corporate officers are related and allied,” is a defendant in a breach of contract action filed by plaintiff and real party in interest Jose Fontenla. [319]In July 1986, plaintiff scheduled the successive depositions of four officers and employees of Lowy and three officers and employees of its predecessor corporation, Lesny Development. The seven depositions were scheduled over two days.

The first scheduled deposition was that of Alan Lowy. Mr. Lowy appeared for his deposition accompanied by the six remaining deponents. Lowy’s counsel refused to allow the deposition of Mr. Lowy to go forward without the other six being present. Plaintiff’s counsel would not proceed under those circumstances.

The proceedings adjourned at that point and plaintiff moved for a protective order to exclude from each deposition all Lowy representatives except for the deponent and Lowy’s counsel. Lowy opposed the motion, contending that all of Lowy’s officers were entitled to be present at each deposition.

The transcript of the hearing on plaintiff’s motion indicates that the respondent court was inclined to make a “compromise” order which would have permitted the corporation to have one officer, in addition to the deponent, present at each deposition as the corporation’s representative. The court analogized the situation to a trial, where the court may exclude any witness, other than a party to the action, but “[i]f a person other than a natural person is a party to the action, an officer or employee designated by its attorney is entitled to be present.” (Evid. Code, § 777, subd. (c).)

Whether by mistake or design, the court did not follow its original inclinations, and instead made an order providing that “all the remainder of corporate officers may not be present during the taking of the deposition of any individual corporate officer.”

Lowy then filed the within petition for writ of mandate, seeking an order from this court to the effect that all corporate officers have an absolute right to be present at the deposition of any other corporate officer. We issued an alternative writ substantially reflecting the “compromise” originally proposed by the respondent court.