77 Cal.App.5th 667
Cal. Ct. App.2022Background:
- Ross, a former Riverside County prosecutor, sued the County for whistleblower retaliation and disability discrimination after he alleged he was reassigned and effectively terminated for urging dismissal of a murder prosecution.
- Ross subpoenaed Mike Hestrin (then DA) for deposition about (a) advice Hestrin allegedly gave Ross in his role with the prosecutors union and (b) an alleged conversation Pacheco testified Hestrin had, in which unidentified County lawyers asked Hestrin to alter his anticipated testimony about former DA Paul Zellerbachs ethics.
- The County moved to quash under the apex-deposition rule that agency heads are not ordinarily subject to deposition absent compelling reasons (personal factual knowledge not available elsewhere).
- The trial court granted the motion to quash, finding union-related testimony obtainable from others and that the alleged conversation about altering testimony was irrelevant to Rosss claims.
- On writ review, the appellate court (1) affirmed the quash as to union issues (no compelling need) and (2) reversed as to the alleged request that Hestrin alter testimony, holding privilege was waived and the topic is discoverable as probative of credibility and consciousness of guilt.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Apex deposition re: union counseling | Ross: Hestrin provided direct union advice to Ross and has unique personal factual knowledge | County: Hestrin was not union president at the relevant time; Aki and records can provide the same information; apex rule bars deposition absent compelling need | Quash proper for union topics; trial court did not abuse discretion (Ross failed to show no other source) |
| Privilege/waiver re: alleged request to alter testimony | Ross: Pachecos sworn testimony recounts Hestrin saying County lawyers asked him to change testimony; privilege is waived by disclosure and crime-fraud exception may apply | County: Communications are privileged, hearsay, and irrelevant; outside counsel denies contact | Court: Any attorney-client privilege was waived when Hestrin (the privilege holder) disclosed the substance to Pacheco; deposition limited to this topic allowed |
| Relevance of alleged attempt to alter testimony (credibility/consciousness of guilt) | Ross: Efforts to suppress or alter testimony about Zellerbachs ethics is relevant to Zellerbachs credibility and shows Countys consciousness of guilt | County: Altering testimony about ethical character is not relevant to the merits of Rosss FEHA/whistleblower claims | Court: Such evidence is relevant to witness credibility and consciousness of guilt and therefore discoverable; admissibility at trial remains for the trial court to decide |
Key Cases Cited
- Westly v. Superior Court, 125 Cal.App.4th 907 (2004) (apex-deposition rule limiting depositions of agency heads)
- Nagle v. Superior Court, 28 Cal.App.4th 1465 (1994) (same apex-deposition principles)
- Contractors State License Bd. v. Superior Court, 23 Cal.App.5th 125 (2018) (two-part test: direct personal factual knowledge and lack of other sources)
- People ex rel. Lacey v. Robles, 44 Cal.App.5th 804 (2020) (protective order for sitting district attorney affirmed)
- Transamerica Title Ins. Co. v. Superior Court, 188 Cal.App.3d 1047 (1987) (waiver scope where privilege holder discloses communications)
- People v. Williams, 16 Cal.4th 153 (1997) (attempts to suppress evidence relevant to consciousness of guilt)
- People v. Kendall, 111 Cal.App.2d 204 (1952) (efforts to alter witness testimony admissible to show consciousness of guilt)
- Longuy v. La Societe Francaise de Bienfaisance Mutuelle, 52 Cal.App. 370 (1921) (evidence of efforts to procure false testimony may be admitted)