Contractors' State License Bd. v. Superior Court of Contra Costa Cnty.

• Decision Date: 26 April 2018
• Docket Number: A153684
• Citation: 23 Cal.App.5th 125,232 Cal.Rptr.3d 558
• Court: California Court of Appeals Court of Appeals
• Parties: CONTRACTORS' STATE LICENSE BOARD, Petitioner, v. The SUPERIOR COURT of Contra Costa County, Respondent; Black Diamond Electric, Inc., Real Party in Interest.

23 Cal.App.5th 125

232 Cal.Rptr.3d 558

CONTRACTORS' STATE LICENSE BOARD, Petitioner,

v. The SUPERIOR COURT of Contra Costa County, Respondent;Black Diamond Electric, Inc., Real Party in Interest.

A153684

Court of Appeal, First District, Division 1, California.

Filed April 26, 2018

Xavier Becerra, Attorney General, Thomas S. Patterson, Assistant Attorney General, Anthony R. Hakl and John W. Killeen, Deputy Attorneys General, for Petitioner.

Birka-White Law Offices, David M. Birka-White and Mindy M. Wong, Danville, for Real Party in Interest.

BY THE COURT^* :

The Contractors' State License Board (the Board) seeks a writ of mandate and a stay to prevent the "apex deposition" of David R. Fogt. Fogt is the Board's Registrar of Contractors, a position which makes him the Board's secretary and chief executive officer. After real party in interest, Black Diamond Electric, Inc. (BDE), noticed Fogt's deposition in a declaratory judgment action BDE had brought against the Board, Fogt sought a protective order to prevent the deposition. Respondent court denied the motion for a protective order, and the Board now seeks writ review.

We conclude that under well-established California law, the head of a government agency, such as Fogt, generally is not subject to deposition. "An exception to the rule exists only when the official has direct personal factual information pertaining to material issues in the action and the deposing party shows the information to be gained from the deposition is not available through any other source." ( Westly v. Superior Court (2004) 125 Cal.App.4th 907, 911, 23 Cal.Rptr.3d 154 ( Westly ).) We hold that this exception does not apply in this case. We therefore grant the Board's petition and issue a peremptory writ in the first instance, as we previously informed the parties was possible. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177–180, 203 Cal.Rptr. 626, 681 P.2d 893 ( Palma ).)

FACTUAL AND PROCEDURAL BACKGROUND

BDE is a licensed electrical contractor and is currently the subject of a disciplinary proceeding brought by the Board. The Board's March 20, 2017 accusation alleges that uncertified BDE employees performed work that required certification, and that certified trainee/employees performed work without required supervision by a certified electrician. The disciplinary proceeding is currently pending before the Office of Administrative Hearings.

After the disciplinary proceeding was initiated, BDE filed a complaint in Contra Costa Superior Court. The complaint seeks a declaration as to the proper definition of certain terms used in the Labor Code, including "electrician," "electrical work," and "direct supervision." (See Lab. Code, §§ 108, subd. (c), 108.2, subd. (a), 108.4, subd. (a)(3).) In the alternative, the complaint seeks a declaration that the terms are impermissibly vague. Finally, the complaint seeks a "permanent injunction enjoining and restraining the [Board] from seeking to enforce the ‘direct supervision’ provision of Labor Code section 108.4 [, subdivision ](a)(3) until the legislation provides the [Board] with further clarification."¹

BDE submitted interrogatories and document production requests to the Board on January 19, 2018. One week later, BDE served a notice of deposition for Fogt. Fogt currently serves as the Board's Registrar of Contractors—the "executive officer and secretary of the board." ( Bus. & Prof. Code, § 7011, subd. (b).) BDE noticed the deposition for February 16.

The Board then filed a motion for protective order to prevent the deposition. It argued the deposition was improper before a decision on the Board's demurrer, and it contended that the deposition would be harassing and burdensome. As to the latter contention, the Board argued that BDE was seeking to depose Fogt on the definition of statutory terms, which are issues of law, not fact.

In its opposition to the motion, BDE made clear that it sought to depose Fogt concerning the Board's "operating definition of ‘electrician’ and ‘direct supervision’ ... for purpose of enforcement ...." The Board filed a reply in which it raised an argument it had not developed in its motion. Citing numerous California cases, it contended that top government executives are normally not subject to deposition.

On February 13, respondent issued a tentative ruling denying the motion. The following day, the parties appeared at a hearing on the motion. Before the hearing, counsel for the Board notified respondent and opposing counsel that he would focus his argument on the law prohibiting the deposition of high government officials, noting that the argument had not been addressed in the tentative ruling. At the hearing, the parties engaged in what BDE's counsel describes as a "robust argument" about the relevant California and federal case law and the facts of the case.²

On February 14, respondent issued a written order denying the Board's request for a protective order. Its written order addressed the argument raised in the Board's reply regarding the deposition of high government officials. Respondent distinguished the cases on which the Board relied, ruling that Fogt allegedly "has direct factual information and that he was directly involved in issues related to this case before his appointment as Executive Officer."

On February 21, the Board filed the current petition seeking a writ of mandate and an immediate stay. The following day, we issued a temporary stay of the order pending further briefing and consideration by this court. In the stay order, we gave Palma notice, informing the parties that we might proceed by issuing a peremptory writ of mandate in the first instance.

BDE has submitted informal opposition, and the Board has filed a reply.

DISCUSSION

The Board contends that high government officials like Fogt generally are not subject to deposition.³ The Board acknowledges the existence of the exception for officials possessing direct, personal, factual information relating to material issues in the action, but it argues that the information BDE seeks is not factual in nature. In addition, the Board asserts that BDE has not met its burden of showing that the information is not available from any other source. We agree with the Board.

I. California Law Generally Prohibits Depositions of High Government Officials.

"The general rule in California and federal court is that agency heads and other top governmental executives are not subject to deposition absent compelling reasons." ( Westly, supra, 125 Cal.App.4th at p. 910, 23 Cal.Rptr.3d 154.) "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.’ " ( Nagle v. Superior Court (1994) 28 Cal.App.4th 1465, 1468, 34 Cal.Rptr.2d 281 ( Nagle ), quoting Union Savings Bank of Patchogue, New York v. Saxon (D.D.C. 1962) 209 F.Supp. 319, 319–320.)

This rule has been applied in numerous cases involving an array of constitutional officers, board members, and agency heads. (See Westly, supra, 125 Cal.App.4th at p. 912, 23 Cal.Rptr.3d 154 [granting writ of mandate to prevent depositions of state Controller and Attorney General]; Nagle, supra, 28 Cal.App.4th at pp. 1467–1468, 34 Cal.Rptr.2d 281 [granting peremptory writ to prevent depositions of director of California Employment Development Department and former director of California Department of Health Services]; Deukmejian v. Superior Court (1983) 143 Cal.App.3d 632, 635, 191 Cal.Rptr. 905 ( Deukmejian ) [granting peremptory writ in first instance ordering superior court to quash notice to appear directed at Governor]; State Board of Pharmacy v. Superior Court (1978) 78 Cal.App.3d 641, 644–646, 144 Cal.Rptr. 320 ( State Board of Pharmacy ) [issuing peremptory writ of mandate directing superior court to quash subpoena for deposition of Attorney General]; Board of Dental Examiners v. Superior Court, supra, 55 Cal.App.3d at pp. 813–814, 127 Cal.Rptr. 865 [issuing writ of prohibition to prevent deposition of members of state licensing board].) As we observed 40 years ago, " ‘the administrative head of a large executive department should not be called upon personally to give testimony by deposition ... unless a clear showing is made that such a proceeding is essential to prevent prejudice or injustice to the party who would require it.’ " ( StateBoard of Pharmacy , at p. 645, 144 Cal.Rptr. 320, quoting Wirtz v. Local 30, International U. of Operating Engineers (S.D.N.Y. 1963) 34 F.R.D. 13, 14.) 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. (See Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1289, 13 Cal.Rptr.2d 363 [deposition of corporate president].)

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 information pertaining to material issues in the action ...." ( Westly, supra, 125 Cal.App.4th at p. 911, 23 Cal.Rptr.3d 154, italics added.) Second, the deposing party must also show "the information to be gained from the deposition is not available through any other source." ( Ibid. )

II. BDE Has Failed to Show the Exception Applies.

BDE does not dispute that California law generally does not allow high government officials to be deposed. Instead, it appears to contend that Fogt is not such an official because it seeks to depose him regarding information gained during his earlier career with the Board. BDE also argues that...