Contractors' State License Bd. v. Superior Court

Contractors' State License Bd. v. Superior Court (CA1/1 A153684, filed 4/26/18, pub. ord. 5/9/18) Licensing Board Disciplinary Proceeding/Apex Deposition

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 (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 (Palma).)

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