Tentative Ruling: Artius Dermatology Associates PC et al vs Cura Dermatology et al
Case Number
26CV01017
Case Type
Hearing Date / Time
Fri, 08/21/2026 - 10:00
Nature of Proceedings
CMC; Demurrer and Motion to Strike; Motion to Compel; Motion: Protective Order
Tentative Ruling
For all reasons stated herein:
- (1) The motion by defendants for protective order is denied.
- (2) The motion by plaintiffs to compel the deposition of defendant Thomas Auth is granted. The deposition shall take place on or before September 30, 2026.
- (3) The motion to strike and demurrer by defendants pertaining to the original complaint are ordered off-calendar as moot given the filing of a first amended complaint on July 31, 2026.
Background:
On February 17, 2026, plaintiffs Artius Dermatology Associates, P.C. (Artius), Robert Leposavic, MD (Dr. Leposavic) initiated this action by filing a complaint against defendants Cura Dermatology Management, LLC (Cura), Thomas Auth (Auth), Advanced RAD Solutions, LLC (ARS), Sol Dermatology Associates, Inc. (Sol) and William Kivett, MD (Dr. Kivett).
On July 31, 2026, plaintiffs filed a first amended complaint (FAC) which added Katherine Katie Acosta (Acosta) as a defendant and removed ARS as a defendant, and set forth four causes of action for (1) fraud, (2) conversion, (3) violation of penal code section 496, subdivision (c), and (4) intentional interference with contractual relations.
As alleged in the FAC:
Artius is a professional corporation that operates a dermatology practice at multiple locations in California and Nevada. (FAC, ¶ 12.)
Cura is a limited liability company based in Santa Barbara that provides management services. (FAC, ¶¶ 3, 15.)
Auth is the majority shareholder of Cura and exercised day-to-day control over Cura’s business operations. (FAC, ¶¶ 5, 28.)
Acosta is the chief financial officer of Cura and reported directly to Auth. (FAC, ¶¶ 4, 32.)
In 2018, Auth approached Dr. Leposavic about purchasing a business venture involving Artius and Cura. (FAC, ¶ 13.) Dr. Leposavic purchased 100 percent of Artius and 35 percent of Cura for $325,000. (FAC, ¶ 14.) Auth retained 65 percent of Cura. (Ibid.)
Auth represented that Cura would function as a management-services organization and provide only non-clinical services to Artius. (FAC, ¶ 15.) Cura would manage Artius’s financial and administrative affairs transparently and in good faith, would not use control over Artius’s billing or financial systems to enrich Auth or an Auth-related entity, and would respect Artius’s ownership of its medical-service receivables. (FAC, ¶ 17.)
From approximately January 2019 through December 2025, Cura provided management and administrative services to Artius pursuant to an Amended and Restated Management Services Agreement (MSA). (FAC, ¶¶ 20-22.) The MSA confirmed that Artius owned the receivables generated from dermatological services provided by Artius. (FAC, ¶ 24.)
Through its management role, Cura obtained access to Artius’s bank accounts, merchant-card deposits, insurance reimbursements, patient payments, billing systems, accounts receivable, financial records, and payment information. (FAC, ¶ 26.)
Beginning in or around 2019, Auth directed or caused Cura personnel assigned to Artius to promote “eBx” treatment over other treatment options, including Mohs surgery. (FAC, ¶ 37.) Cura personnel and managers reporting to Auth financially incentivized Artius staff to promote eBx treatment. (FAC, ¶ 38.) Auth and Cura also directed medical and non-medical staff to describe eBx as nonscarring and painless and to promote those purported benefits to patients in a manner intended to increase eBx utilization. (FAC, ¶ 40.)
In May 2024, Dr. Leposavic discovered that non-professional staff were being financially incentivized to influence patient treatment selection and that quotas or other financial objectives were being used to promote eBx. (FAC, ¶ 41.)
Dr. Leposavic confronted Auth concerning those practices. (FAC, ¶ 42.) Auth told Dr. Leposavic that Auth had conducted extensive research with his attorney and that the attorney had drafted language concerning the legality of the financial incentives under the 2018 Stark-law provisions. (FAC, ¶ 43.) These statements were false or misleading. (FAC, ¶ 44.)
After Dr. Leposavic discovered the eBx-related conduct, Auth, Cura, and their agents began asserting that Artius owed substantial amounts to Cura. (FAC, ¶ 46.) Auth and Cura caused invoices to be issued that included inflated, unsupported, or unauthorized charges and caused those invoices to be treated as amounts owed by Artius. (FAC, ¶ 47.)
In 2025, these unpaid amounts were disputed and Cura initiated a lawsuit against Artius and Dr. Leposavic concerning the alleged debt. (FAC, ¶ 51.) After that lawsuit was filed, Cura and Auth terminated or purported to terminate Cura’s relationship with Artius. (FAC, ¶ 52.)
Artius maintained a business deposit account with JPMorgan Chase Bank, including an account ending in 2592, that received payments for Artius’s medical services. (FAC, ¶ 53.) In August 2025 and thereafter, Auth, Cura, and Acosta caused, directed, approved, or assisted in changing banking authorizations, account access, signatory authority, or related controls in a manner that prevented or impaired Artius and Dr. Leposavic from accessing or controlling the account. (FAC, ¶ 55.) Defendants refused to restore plaintiffs’ access or provide information sufficient to identify the disposition of Artius’s funds. (FAC, ¶ 61.)
After plaintiffs’ access to this account was impaired or removed, Cura and Auth continued to receive, control, transfer, or withhold Artius’s incoming receivables and account funds. (FAC, ¶ 58.) These actions were not authorized by Artius. (FAC, ¶ 59.)
Artius had contractual relationships with physicians, employees, and patients necessary to operate its dermatology practice and provide continuing medical services, including Dr. Kivett. (FAC, ¶¶ 63-64.) Shortly after the lawsuit concerning the alleged debt was filed by Cura, Auth recruited Dr. Kivett to participate in establishing a competing dermatology practice, Sol. (FAC, ¶ 69.) Sol employed, engaged, or accepted personnel and patients who had ongoing contractual relationships with Artius. (FAC, ¶ 77.) Auth is the chief executive officer of Sol and Acosta is the chief financial officer of Sol. (FAC, ¶¶ 71-72.)
This hearing pertains to a deposition of Auth by plaintiffs. Defendants move for a protective order, arguing that this deposition should be taken later, if at all, because the pleadings are not “at issue” and because of the apex doctrine. Plaintiffs move to compel this deposition, arguing that they need not wait until the pleadings are settled before taking depositions and the apex doctrine is inapplicable given Auth’s unique personal knowledge of the issues in this lawsuit.
Analysis:
“Any party may obtain discovery within the scope delimited by Chapter 2 (commencing with Section 2017.010) … by taking in California the oral deposition of any person, including any party to the action.” (Code Civ. Proc., § 2025.010.) “The plaintiff may serve a deposition notice without leave of court on any date that is 20 days after the service of the summons on, or appearance by, any defendant.” (Code Civ. Proc., § 2025.210, subd. (b).)
“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” (Code Civ. Proc., § 2017.010.) “A trial court must be mindful of the Legislature’s preference for discovery over trial by surprise, [and] must construe the facts before it liberally in favor of discovery ….” (Williams v. Superior Court (2017) 3 Cal.5th 531, 540.)
“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party … fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony....” (Code Civ. Proc., § 2025.450, subd. (a).) The moving party has the burden of proof. (Evid. Code § 500.)
“Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.420, subd. (a).) “The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420, subd. (b).) The moving party has the burden of proof. (Evid. Code § 500.)
Under the apex doctrine, “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 … the trial court should issue the protective order and first require the plaintiff to obtain the necessary discovery through less-intrusive methods.” (Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1289 (Liberty Mutual).)
Here, this action was initiated in February 2026. At the time of this order, this case has been pending for over six months. “Pleading deficiencies generally do not affect either party’s right to conduct discovery [citation] and this right (and corresponding obligation to respond) is particularly important to a plaintiff in need of discovery to amend its complaint [citation].” (Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1436, fn. 3.)
An FAC was filed on July 31, 2026. The FAC establishes that the claims (and likely defenses) in this action depend heavily on Auth’s personal knowledge and involvement. Even if a demurrer were eventually sustained, in whole or in part as to certain claims against Auth, he would still be a witness with unique personal knowledge. The apex doctrine does not support a protective order under these circumstances. (Liberty Mutual, supra, 10 Cal.App.4th at p. 1289.)
Defendants have not carried their burden to demonstrate unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (Code Civ. Proc., § 2025.420, subd. (b); Evid. Code § 500.) The deposition of Auth is appropriate discovery pertaining to a claim or defense in this action. (Code Civ. Proc., §§ 2025.010, 2017.010.) The deposition of Auth may move forward. (Code Civ. Proc., § 2025.210, subd. (b).) The motion for protective order by plaintiffs will be denied and the motion to compel this deposition by defendants will be granted. The parties shall meet and confer over a date, time, and location for plaintiffs to take the deposition of Auth. The deposition shall take place on or before September 30, 2026.