Judge: David J. Cowan, Case: BC670866, Date: 2023-03-15 Tentative Ruling
Case Number: BC670866 Hearing Date: March 15, 2023 Dept: 200
LOS ANGELES SUPERIOR COURT – WEST DISTRICT
BEVERLY HILLS COURTHOUSE – DEPT. 200
JUDGE DAVID J. COWAN
TENTATIVE RULING ON MOTIONS OF CITY OF COMPTON TO QUASH NOTICES TO APPEAR IN LIEU OF SUBPOENA FOR EMMA SHARIF, BRANDON MIMS, JONATHAN BOWERS, ISAAC GALVAN AND ANDRE SPICER
Michael Fletcher, et al. v. City of Compton, et al., Case No. BC670866
Hearing Date: March 15, 2023, 8:30 a.m.
BACKGROUND
On February 2, 2023, City of Compton (“City”) filed the above-referenced motion for its Mayor Emma Sharif.
On February 6, 2023, City filed substantially identical motions pertaining to other of its elected officials: Treasurer Brandon Mims, and current or former members of its City Council, Jonathan Bowers, Isaac Galvan and Andre Spicer.
On February 22, 2023, Plaintiffs filed a trial brief in support of their earlier ex parte application for an order requiring certain witnesses appear at the hearing on the motions to quash,1 as well as objections to the portion of the Declarations of Kaylin A. Bierly in support of those motions that purports to state Sharif, Mims, Spicer and Bowers have “no specific unique, personal knowledge of the facts and circumstances relevant to the issues in this litigation.”
On March 2, 2023, Plaintiffs filed a combined opposition to the motions.
On March 7, 2023, City filed a combined Reply in support of the motions, to which it attached a Declaration of City Clerk Vernell McDaniel.
On March 8, 2023, the Court denied, without prejudice, a further ex parte application for the Court to order these persons, as well as Thomas Thomas, the current City Manager, to testify at the Evid. Code sec. 402 hearings scheduled for March 13 and March 14. The Court indicated that it would explore the need for Plaintiffs to have them present as witnesses after hearing the initial witnesses for the City, including defendant Victor Orozco.
DISCUSSION
Ruling on Evidentiary Objections: The Court sustains the objections to the above-referenced portions of the Declarations of Kaylin Bierly on the grounds that she has not shown any personal knowledge as to the involvement of the persons to whom notices were sent in the matters at issue.
By the same token, Plaintiffs provide no evidence to support their contention that Mayor Sharif when serving previously as a member of the City Council voted for the City to re-hire and promote Orozco as Director of Licensing and Chief Building Official – which Plaintiffs contend was unlawful and evidence of corruption at the City. Orozco was involved thereafter in the matters at issue here. Similarly, no foundation is laid for the alleged statement of Todd Carter (whom they represent to be a FBI Agent) that the City re-hiring Orozco was “an ongoing criminal enterprise” and the best evidence of what he allegedly characterized as “bribery in broad daylight.”
The subject of this case concerns the legality of action taken by the City on June 5, 2017 to close a marijuana dispensary.
On July 19, 2021 and September 1, 2021, the Court (by the judge then assigned to this case, Hon. Teresa A. Beaudet) issued protective orders excusing the following from having to attend depositions that Plaintiffs had scheduled: Mims, Galvan and then Mayor, Aja Brown.
The dates that the City officials had positions at the City is relevant in terms of whether they would have personal knowledge of the action by City in or around June, 2017:
According to McDaniel, City records reflect as follows:
Sharif was elected Mayor in June 2021. She served previously on the City Council from June 2015 until she was elected Mayor.
Mims was elected Treasurer in June 2021. He was not in his position with the City in June 2017.
Bowers was elected to the City Council in June 2021. He was not in his position with the City in June 2017.
Spicer was elected to the City Council in June 2022. He was not in his position with the City in June 2017.
Whatever may have been said during a closed-door session of the City Council in July 2021 has not been shown to be relevant to what occurred in June 2017 and moreover would not be admissible here where that meeting was confidential under Government Code sec. 54957(b)(1).
Plaintiffs provide a quotation from what appears to be deposition testimony of former City Clerk Alita Godwin that Orozco’s employment violated City rules.
Plaintiffs provide a quotation from what appears to be deposition testimony of Orozco that he did not have a degree from an accredited college or university in a related field.
Sec. 706 of the City Charter provides: “The City Manager shall be the chief executive officer and the head of the administrative branch of the City government. He shall be responsible to the City Council for the proper administration of all affairs of the City excepting such matters for which the elective officers are made responsible by this Charter…”
Sec. 602 of the City Charter provides: “Neither the City Council nor any of its members shall order or request, directly or indirectly, the appointment of any person to an office or employment, or his removal therefrom, by the City Manager…”
Plaintiffs contend that the so-called Apex deposition rule is not applicable to preclude a person falling within the scope of that rule from having to attend trial (as opposed to a deposition) and that moreover that even if that rule did apply at trial that the persons that are the subject of the motions do not fall within the persons intended for protection. They argue that these persons merely work part-time at the City and that the City Manager is the relevant Apex person at the top of the “pyramid” who administers the City through staff; not these elected officials.
Plaintiffs are correct that the Apex deposition rule pertains strictly speaking to depositions, not trials.
“…under well-established California law, the head of a government agency…generally is not subject to deposition. ‘An exception to the rule exists only (emphasis in original) 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.’…‘The general rule…is that agency heads and other top governmental executives are not subject to deposition absent compelling reasons.’…’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…’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….) 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… (Citation omitted) Second, the deposing party must also show “the information to be gained from the deposition is not available through any other source.” Contractors’ State Licensing Board v. Superior Court (2018) 23 Cal.App.5th 125, 128, 131-132
However, even if this deposition rule is not per se applicable, its reasoning is just as relevant at trial. Under CCP sec. 1987.1, a court may quash a trial subpoena to preclude an “unreasonable” demand to appear. Failure to follow this rule would be “unreasonable.” If a senior official is too busy with public business to attend to that he or she should not have to attend a deposition - about which the official has no personal knowledge and another official does have such first-hand knowledge - the same would be true for a trial. The Court will therefore apply the Apex rule in this context of a notice to appear at trial in lieu of subpoena.
The Court does not know the details of the well-publicized trials that Plaintiffs refer to in support of these individuals having to appear. However, whether the CEO and top elected official had “personal factual information” that was material to the issues to be tried for which their testimony was needed might explain why they were called. In any event, the burden is on Plaintiffs here where defendants have filed these motions to quash (that are stated in the alternative as motions for protective order) to show why an exception should be made to this rule.2 In particular, plaintiffs should explain for what reason they need Mims’ testimony,3 as well as what facts they wish to offer that show, for example, why the City should not have hired Orozco that goes to his or the City’s credibility.
That said, the burden would be on defendants initially to show that even if the rule applies generally to trial that it has applicability to the persons in question where Plaintiffs have shown by way of quotation to the City Charter that the City Manager, not the Mayor, would be the relevant Apex person. There is no evidence that the persons in question would be taken away from their public functions to attend trial. They are all apparently working for the City part-time and the Court has not been given any details as to when that would be.
Furthermore, McDaniel’s testimony is unclear whether Mims, Bowers and Spicer had prior positions with the City even if they did not hold their current positions in 2017. As Plaintiffs indicate, it may be that through their prior positions with the City that they did obtain personal knowledge either of events in 2017 or material information as to those who were involved in those events.4
In turn, there is no evidence at all as to when Galvan may have been affiliated with the City.5
Assuming defendants could meet that burden, Plaintiffs would then have to meet the two elements to show an exception should apply, as reflected in the quoted language set forth above.
CONCLUSION
For these reasons, the Court continues the hearing on the motions to quash to March 20 at 8:30 a.m. All further relevant argument or evidence shall be filed by noon on March 16.
Parties are to email the courtroom at BEV200@lacourt.org with their intention to either submit or argue the motion.
Footnotes:
1) The Court denied that application – as to do so would defeat the whole purpose of the motions to quash – that these witnesses should not have to attend trial. The Court stated it would decide if witnesses were necessary at the hearing on the motion depending on whether there was any need to hear from them after consideration of the briefing. At this stage, the Court does not believe oral testimony is required even if declarations are needed, as discussed below.
2) Given that City only provided relevant evidence to support their motions for the first time by way of a declaration attached to its Reply, Plaintiffs should have an opportunity to respond to those facts.
3) Plaintiffs will also need to show why this Court should order Mims and Galvan to attend trial when Judge Beaudet already issued a protective order finding their testimony was not needed at a deposition.
4) Plaintiffs argue that Sharif, for example, knows facts concerning Orozco that would go to his credibility – which she may have learned sometime other than in June 2017. Likewise, they apparently seek the testimony of Spicer and Bowers for impeachment purposes. While this may be sufficient, the Court still needs to be provided some information to justify the order.
5) If as City asserts Galvan’s current connection to City is only as a former City Council member, the Court is inclined to grant the motion to quash the notice to City to produce him.