In Contractors' State Licensing Board v. Superior Court (Black Diamond Electric), ordered published May 9, 2018, the First District Court of Appeal, Division 1 issued a peremptory writ in the first instance reversing a trial court decision denying a protective order. After the petitioner board initiated a disciplinary proceeding against the real party electrical contractor, the contractor brought a declaratory relief action seeking the interpretation of various terms in the Labor Code and injunctive relief. The contractor noticed the deposition of the secretary/chief executive officer of the Board. The Board sought a protective order to prevent the deposition, on grounds including the apex deposition rule. The trial court denied the motion, ruling that the officer had direct factual information and was directly involved in relevant issues before he was appointed executive officer.
The appellate court ruled the trial court had erred. Under the apex deposition rule, California and federal courts generally do not allow parties to take the depositions of high government officials, including heads of boards. To take such a deposition, the party must show that the official has direct personal factual knowledge pertaining to material issues in the action; and that the information cannot be gained from any other source. Those showings were not made here. The rule applies to the deponent here, regardless of whether the information sought was obtained when the deponent served the Board in a lower office. The contractor did not seek factual information; instead, it sought the officer's opinion on statutory interpretation, which is a legal issue. The contractor also did not show the information was unavailable elsewhere, since the board had published interpretations of the statutes at issue.
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