23 Cal. App. 5th 125
Cal. Ct. App. 5th2018Background
- Black Diamond Electric, Inc. (BDE) sued the Contractors' State License Board (Board) for declaratory relief about definitions in Labor Code §§ 108 et seq. while a parallel disciplinary action against BDE was pending before OAH.
- BDE noticed a deposition of David R. Fogt, the Board's Registrar of Contractors (the Board's executive officer/secretary), seeking testimony about the Board's prior interpretations and enforcement practices.
- The Board moved for a protective order; the trial court denied it, finding Fogt had direct factual knowledge and had been involved in relevant matters before becoming Executive Officer.
- The Board petitioned for writ review and a stay; the Court of Appeal issued a temporary stay and notified parties Palma procedure might be used.
- The Court of Appeal considered whether (1) high government officials are generally exempt from deposition, (2) the Westly exception (direct personal factual knowledge and unavailability elsewhere) applied, and (3) BDE met its burden to justify Fogt’s deposition.
- The court granted a peremptory writ in the first instance, directing the trial court to vacate its denial and grant the protective order.
Issues
| Issue | Plaintiff's Argument (BDE) | Defendant's Argument (Board) | Held |
|---|---|---|---|
| Whether heads of agencies (Fogt) may be deposed | Fogt has unique, personal knowledge from prior Board service and as Enforcement Chief | Agency heads are generally protected from deposition; exception narrow | Agency heads generally not subject to deposition; rule applies to Fogt |
| Whether the information sought is factual (allowing deposition) | Seeks Board's prior administrative interpretations and enforcement practice — factual and unique to Fogt | Interpretation/enforcement stance are legal matters, not personal factual knowledge | The sought information is legal/policy (statutory interpretation and enforcement discretion), not admissible personal factual knowledge |
| Whether the deposition information is unavailable from other sources | BDE asserts Board's discovery answers inadequate; needs Fogt to obtain enforcement history and policy | Board points to published interpretations, orders, agency documents; BDE can compel fuller discovery if needed | BDE failed to show the information was unavailable from other sources; exception not met |
| Appropriateness of peremptory writ in first instance | (implicit) ordinary review sufficient | Relief necessary because deposition would cause irreparable, unreviewable harm | Peremptory writ in first instance appropriate given clear legal error and urgency |
Key Cases Cited
- Westly v. Superior Court, 125 Cal.App.4th 907 (court adopts rule limiting depositions of agency heads and articulates two-part exception)
- Nagle v. Superior Court, 28 Cal.App.4th 1465 (depositions of top state officials disfavored to avoid hampering government business)
- Deukmejian v. Superior Court, 143 Cal.App.3d 632 (governor cannot be deposed merely for knowledge gained in other public service; distinction between policy and factual knowledge)
- State Board of Pharmacy v. Superior Court, 78 Cal.App.3d 641 (writ to quash deposition of Attorney General; protects high officials from unnecessary deposition)
- Palma v. U.S. Industrial Fasteners, Inc., 36 Cal.3d 171 (peremptory writ in first instance procedure justified in urgent or obvious-entitlement cases)
- State of California v. Superior Court, 12 Cal.3d 237 (discovery not permitted into officials' mental processes or opinions on pure legal questions)
- Transcentury Properties, Inc. v. State of California, 41 Cal.App.3d 835 (pure legal challenges to agency action do not require discovery)
- United States v. Morgan, 313 U.S. 409 (courts should not probe mental processes of administrative decisionmakers)
- Simplex Time Recorder Co. v. Secretary of Labor, 766 F.2d 575 (disallowing deposition of officials on discretionary enforcement decisions when record materials suffice)