2016-00195759-CU-DF

Nabil Samaan vs. Mark Rains

Nature of Proceeding: Motion to Quash the Deposition Subpoena

Filed By: McDermott, Amanda L.

Defendants Mark Rains and the County of Sacramento’s (“Defendants”) Motion to Quash the Deposition Subpoena for Scott Jones and for Protective Order is GRANTED.

Plaintiff Nabil Samaan’s (“Plaintiff”) request for judicial notice of this Court’s September 22, 2017, order on defendant Mark Rains’ motion for summary judgment is GRANTED.

The Court notes Plaintiff’s opposition was not timely served pursuant to Code of Civil Procedure section 1005 as it was served by mail and not in a manner calculated to reach Defendants the next business day. However, as the Defendants have replied on the merits (see, e.g. Reedy v. Bussell (2007) 148 Cal. App. 4th 1272, 1288), the Court has considered the late served opposition papers.

This action arises from an alleged defamatory statement made via email by defendant Mark Rains, a county employee. Plaintiff alleges that he has been a licensed attorney in California in good standing for over 20 years and that he has several businesses in Sacramento, including his law office. He alleges that on February 16, 2016, Mr. Rains published a false statement in an email to five people that Plaintiff was “a threat to County personnel.” Specifically, the email stated “[f]or the record, I believe that [Plaintiff] could be a threat to County Personnel.” Plaintiff alleges this statement prevented him from completing his construction project and caused his permit to carry a concealed weapon (“CCW permit”) to be revoked by the Sacramento County Sheriff’s Department.

After the Court granted Plaintiff’s motion for leave to file an amended complaint, Plaintiff filed a First Amended Complaint (“FAC”) adding the County of Sacramento as a defendant, as well as causes of action for violation of Civil Code section 52.1, Sacramento County Ordinance section 9.20.010, negligence, IIED and NIED, and violation of constitutional rights.

On January 18, 2018, the Court sustained Defendants’ demurrer without leave to amend as to the claim for violation of Sacramento County Ordinance section 9.20.010, and sustained the demurrer with leave to amend as to the claim for violation of Civil Code section 52.1. Plaintiff filed his Second Amended Complaint (“SAC”) on January 29, 2018.

Plaintiff has issued a deposition subpoena for the deposition of Sheriff Scott Jones, the Sheriff of Sacramento County. Plaintiff noticed the deposition to take place at Plaintiff’s residential property located at 4324 “A” Illinois Avenue, Fair Oaks, California.

Defendants move to quash the subpoena on the grounds that Sheriff Jones is a top government executive whose deposition cannot be compelled unless Plaintiff establishes Sheriff Jones has material personal factual information and Plaintiff cannot obtain the information from any other source.

“The general rule in California . . . is that agency heads and other top governmental executives are not subject to deposition absent compelling reasons. [Citations.] . . .

[¶] . . . 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. [Citations.]” (Westly v. Superior Court (2004) 125 Cal. App. 4th 907, 910-911.) The burden is on the party who seeks to depose the official to “show[] good cause that the official has unique or superior personal knowledge of discoverable information.” ( Liberty Mut. Ins. Co. v. Superior Court (1992) 10 Cal. App. 4th 1282, 1289.)

This rule is based on the recognition that an official’s time and the exigencies of everyday business would be severely impeded if a plaintiff were permitted to take oral depositions of high-level government officials who have little or no knowledge of the facts of the case. (Westly, supra, 125 Cal. App. 4th at p. 910; see also Nagle v.

Superior Court (1994) 28 Cal. App. 4th 1465, 1468.) Moreover, high-level depositions “raise a tremendous potential for discovery abuse and harassment.” (Liberty Mut. Ins. Co., supra, 10 Cal. App. 4th at pp. 1287-1288.) Precedent is clear that unless the testimony of a high-level government official is absolutely necessary, the official should not be forced to testify. (Westly, supra, 125 Cal. App. 4th at p. 911-912; see also State Board of Pharmacy v. Superior Court (1978) 78 Cal. App. 3d 64 [Quashing a subpoena where litigants made no clear showing that the deposition of the Attorney General was necessary “to prevent prejudice or injustice,” despite a holding by the lower court that the Attorney General had a unique perspective on the matter].)

Defendants contend Plaintiff has already taken the deposition of Sheriff Jones in a related federal action involving the same subject matter and some of the same parties, wherein he questioned Sheriff Jones as to the basis for the revocation of Plaintiff’s CCW permit. Defendants contend Plaintiff has failed to articulate that Sheriff Jones has material personal knowledge of any additional matter that Plaintiff cannot obtain from another source.

In opposition, Plaintiff vaguely contends he intends to question Sheriff Jones on “his past racist or otherwise wrongful conduct, such as eliminating African-American jurors from jury pools and unlawful harassment of lawyers.” (Opposition at 2:19-24.) Plaintiff fails to explain how this testimony is relevant to his claim that Mr. Rains’ alleged defamatory statement caused him damage. Further, Plaintiff has not asserted any claim against Sheriff Jones or the County of Sacramento for direct liability. As a result, Plaintiff has failed to establish Sheriff Jones has material personal factual information that is relevant to this action and which Plaintiff cannot obtain from any other source. The subpoena issued to Sheriff Scott Jones is hereby quashed.

In addition, the Court grants Defendants’ request for a protective order precluding Plaintiff from taking any depositions in this case at his personal property located at 4324 “A” Illinois Avenue, Fair Oaks, California. Plaintiff has advised Defendants on multiple occasions that he is armed at his property and any individuals coming to his property should take all necessary precautions. (Declaration of Amanda L. McDermott (“McDermott Decl.”) at ¶¶ 14, 28, 45.) In previous meet and confer efforts, Plaintiff agreed to take depositions at a court reporter’s office, but for unexplained reasons no longer intends to abide by that agreement. (McDermott Decl. at ¶¶ 19-20.) Further, while Plaintiff argues he simply wanted to inform Defendants and their counsel that he was “armed” at his property in the sense that he possesses guns, Plaintiff has not set forth any reason justifying the need for depositions to be held at his personal address where he maintains firearms, rather than at a neutral location upon which the parties can agree.