Judge: Armen Tamzarian, Case: 22STCV25856, Date: 2024-03-13 Tentative Ruling

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Case Number: 22STCV25856    Hearing Date: March 13, 2024    Dept: 52

Defendant City of Los Angeles’s Motion to Quash Depositions of LAPD Chief Moore and Assistant Inspector General Sibley, or in the Alternative Motion for a Protective Order

            Defendant City of Los Angeles move to quash the depositions of (now former) Chief of Police Michel Moore and Assistant Inspector General Django Sibley.  In the alternative, defendant moves for a protective order prohibiting their depositions. 

I. Apex Witness Rule

Defendant relies on the “apex witness” rule.  Generally, “ ‘agency heads and other top governmental executives are not subject to deposition absent compelling reasons.’  [Citation.]  ‘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.” ’ ”  (Contractors’ State License Bd. v. Superior Court (2018) 23 Cal.App.5th 125, 131 (CSLB).)  “This rule has been applied in numerous cases involving an array of constitutional officers, board members, and agency heads.”  (Ibid.) 

This doctrine requires a threshold showing that the deponent is a high governmental official.  “As an initial matter, an individual objecting to a deposition must first demonstrate he ‘is sufficiently “high-ranking” to invoke the deposition privilege.’ ”  (Estate of Levingston v. County of Kern (E.D. Cal. 2017) 320 F.R.D. 520, 525.) 

A. Michel Moore

Defendant does not show Michel Moore is a sufficiently high governmental official.  When defendant filed this motion, Moore was the Chief of Police of the Los Angeles Police Department.  It is undisputed that he has since retired from that position. 

Federal district courts have reached different decisions on whether the apex witness rule applies to former high governmental officials.  (See U.S. v. Sensient Colors, Inc. (D.N.J. 2009) 649 F.Supp.2d 309, 316-318 [discussing split authority].)  There is, however, binding authority that the rule applies in the other direction: to officials who ascend the ranks of government.  “The rule prohibiting the deposition of agency heads and other highly placed public officials is grounded on the concern that such proceedings will consume the officials’ time and hamper them in the conduct of government business.”  (CSLB, supra, 23 Cal.App.5th at p. 133.)  “This concern is present whether the official gained the information sought while in his or her present position or while serving in prior, lower ranking positions at the agency.”  (Ibid.)  “[T]he mere fact that a party seeks information acquired before the official assumed the position of agency head does not render the deposition any less time-consuming or disruptive of government business.”  (Ibid.)

This reasoning applies equally to a former high governmental official.  Though a witness acquired information while serving as a high official, deposing the witness after retirement does not disrupt government business.  The purpose underlying the apex deposition rule does not apply to former Chief of Police Michel Moore.  Nothing in the record shows he currently has any official duties or conducts government business. 

B. Assistant Inspector General Django Sibley

            Defendant does not show Sibley is a sufficiently high governmental official to invoke the apex witness rule.  He is “an Assistant Inspector General for the Los Angeles Police Department.”  (Sibley Decl., ¶ 1, italics added.)  In other words, he is not the only Assistant Inspector General.  “The Inspector General of the LAPD is Mark P. Smith.”  (Ibid.)  The “Office of the Inspector General” is not itself a part of the LAPD, but an “independent entity” that provides “civilian oversight.”  (Ouchi Decl., ¶ 16, Ex. 1.)  The office’s website states, “The OIG supports the Board of Police Commissioners (BOPC) – a five-member civilian panel that acts as the head of the” LAPD.  (Ouchi Decl., Ex. 1.)  “The position of Inspector General reports directly to the BOPC.”  (Ibid.) 

Sibley thus is one of the officers at the second highest rank of an office that reports to the Board of Police Commissioners, which acts as the head of one of the City’s departments.  That position is not high enough for the apex deposition rule.  Being one of multiple Assistant Inspector Generals for the Office of the Inspector General is a far lower position than, for example, the “State Controller and Attorney General” (CSLB, supra, 23 Cal.App.5th at p. 131), the Director of a State agency (ibid.), or “the ‘executive officer and secretary of the [Contractors’ State License] board.’ ”  (Id. at p. 132.)  Sibley’s position is also substantially lower than a sheriff, who is “ ‘the highest ranking peace officer agency government official in’ ” the County (Estate of Levingston v. County of Kern, supra, 320 F.R.D. at p. 526), or a County’s district attorney (Ross v. Superior Court of Riverside County (2022) 77 Cal.App.5th 667, 680).    

II. Privilege

            Defendant also argues the court should issue a protective order based on the deliberative process privilege or “mental process doctrine.” 

A. Deliberative Process Privilege

Defendant fails to show the deliberative process privilege applies.  “ ‘Under the deliberative process privilege, senior officials of all three branches of government enjoy a qualified, limited privilege not to disclose or to be examined concerning not only the mental processes by which a given decision was reached, but the substance of conversations, discussions, debates, deliberations and like materials reflecting advice, opinions, and recommendations by which government policy is processed and formulated.’ ”  (Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 305 (Citizens).) 

“ ‘Not every disclosure which hampers the deliberative process implicates the deliberative process privilege.  Only if the public interest in nondisclosure clearly outweighs the public interest in disclosure does the deliberative process privilege spring into existence.  The burden is on the [one claiming the privilege] to establish the conditions for creation of the privilege.’ ”  (Citizens, supra, at p. 306.)  “The key question in every case is whether the disclosure of materials would expose an agency’s decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.”  (Board of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5th 1011, 1040, internal quotes omitted.)

Defendant does not establish that the public interest in nondisclosure clearly outweighs the public interest in disclosure.  Rather than addressing the public interest in disclosure, defendant argues about plaintiff’s private interest in disclosure: “The need for maintaining the confidence of those deliberations and discussions plainly outweigh Plaintiff’s need, which appears to be simply a desire to question two more persons about matters covered by other witnesses and contained in responses to discovery requests.”  (Motion, p. 11.)  Regardless of plaintiff’s need for these depositions, the public has a substantial interest in the government’s decisions regarding police officers’ use of force. 

As in Citizens, defendant’s argument amounts to “simply a policy statement about why the privilege in general is necessary.”  (Citizens, supra, 205 Cal.App.4th at p. 307.)  “[I]nvoking the policy is not sufficient to explain the public’s specific interest in nondisclosure of the documents in this case.  That policy could apply to almost any decisionmaking process.  The city therefore failed to carry its burden to explain what the public’s specific interest in nondisclosure was in this case.”  (Ibid.)

Moreover, persuasive authority states, “The ‘deliberative process’ privilege, closely related to the self-critical analysis privilege, is also inappropriate for use in civil rights cases against police departments.  The deliberative process privilege should be invoked only in the context of communications designed to directly contribute to the formulation of important public policy.”  (Soto v. City of Concord (N.D. Cal. 1995) 162 F.R.D. 603, 612.) 

B. Mental Process

Finally, defendant does not establish any “mental process doctrine” or “mental process privilege” applies.  Defendant’s papers cite two cases in support of its arguments on this subject.  First, County of Los Angeles v. Superior Court (1975) 13 Cal.3d 721, 723 applied “a long-standing legal principle precluding judicial inquiry into the motivation or mental processes of legislators in enacting legislation.”  Moore and Sibley are not legislators, and plaintiff is not inquiring into their motive in enacting legislation.  Second, in Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1343, the California Supreme Court considered disclosure of “the Governor’s judgment and mental processes” as part of the “intrusion into the deliberative process.”  Assuming the existence of a “mental process doctrine” or “mental process privilege” separate from the deliberative process privilege, defendant does not establish it applies here for the same reasons as the deliberative process privilege.

Disposition

Defendant City of Los Angeles’s motion to quash the depositions of (former) LAPD Chief Moore and Assistant Inspector General Sibley, or in the alternative, motion for a protective order, is denied.