2017-00210093-CU-PO

Allison Irwin vs. County of Sacramento

Nature of Proceeding: Motion for Protective Order

Filed By: Cahill, Nicole M.

The Motion for Protective Order filed by Defendant County of Sacramento is granted.

Plaintiffs’ claims against Defendant County of Sacramento arise out of an alleged incident between Plaintiffs’ decedent, Chad Irwin, and County law enforcement officers. The operative Complaint alleges that “[o]n August 18, 2016, decedent, Chad Irwin, was in front of his home located at 6126 Brahms Court, Citrus Heights, CA 95621, when decedent was improperly and illegally detained by law enforcement officers. Decedent was later shot and killed by these officers … who were employed by County of Sacramento[.]” (Compl. ¶ 6.)

On May 14, 2018, the Court granted County’s Motion for Protective Order to preclude the videotaped deposition of Sacramento County Sheriff Scott Jones and accompanying document request. The Court granted the protective order because the Sheriff is a high level executive and the plaintiffs had not met their burden to show that he had unique knowledge of the case that could not be obtained elsewhere. For the parties benefit, an excerpt of the ruling is repeated below:

Defendant County moves for a protective order on the grounds that Sheriff Jones is an executive-level government official whose deposition cannot be compelled unless Plaintiffs establish that he has personal and material factual information that is not obtainable from any other source.

“The general rule in California and federal court is that agency heads and other top governmental executives are not subject to deposition absent compelling reasons. The rule applies to officials summoned to testify as third parties as well as those who are named defendants. ” (Westly v. Superior Court (2005) 125 Cal.App.4th 907, 910 [citations omitted].) In other words, “[a] highly placed public officer should not be required to give a deposition in his official capacity in the absence of ‘compelling reasons.’ Such a requirement should be discouraged as ‘contrary to the public interest,…'” (State Board of Pharmacy v. Superior Court (1978) 78 Cal.App.3d 641, 644,645 [citations omitted].) The deposing party carries the burden to show “good cause that the official has unique or superior personal knowledge of discoverable information.” (Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1289.) “The general rule is based on 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.” (Nagle v. Superior Court (1994) 28 Cal.App.4th 1465, 1468.) “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.” (Id. [emphasis in original omitted].)

Here, Plaintiffs have failed to establish that Sheriff Jones has any relevant personal knowledge regarding the events and circumstances giving rise to Plaintiffs’ claims. There are no allegations in the Complaint that Sheriff Jones was present at the scene where decedent ultimately was killed, nor are there any factual allegations that Sheriff Jones participated in the ensuing investigation thereafter. Sheriff Jones is not named as a Defendant in this case, nor are Plaintiffs asserting claims pursuant to 42 U.S.C. § 1983 such that the County’s policies and practices are relevant (see Monell v. Department of Soc. Servs.(1978) 436 U.S. 658), or that Sheriff Jones could be considered a “policymaker” on behalf of the County for purposes of a constitutional claim. (See, e.g., McMillian v. Monroe County (1997) 520 U.S. 781.) According to the communications between counsel for Plaintiffs and Defendants, submitted as evidence in support of this motion, it appears that Plaintiffs simply wish to have a general discussion regarding Sheriff’s Jones’ sentiments regarding use of force; such a generalized “discussion” is not a sufficient legal basis to circumvent the standard established in Westly. An official’s time and the exigencies of everyday business would be severely impeded if a plaintiff, such as here, were permitted to take oral depositions of high-level government officials who have little or no knowledge of the actual facts of the case. (Westly, 125 Cal.App.4th at 910.) Indeed, unless the testimony of a high-level government official, such as Sheriff Jones, is absolutely necessary, he or she cannot be forced to testify. (Id. at 911-912.) Plaintiffs have already completed the depositions of the two deputies personally involved in the shooting, another deputy with specialized knowledge regarding “suicide by cop,” and a sergeant from the Sheriff’s Department most qualified to testify regarding selection and training of officers. (See Longyear Decl. ¶¶ 7-10, Exh. 1 thereto.) Accordingly, Plaintiffs have not carried their burden to establish that Sheriff Jones has information that cannot be or has not been obtained from any other source. Finally, the Court will not order the deposition of Sheriff Jones where doing so “raise[s] a tremendous potential for discovery abuse and harassment” (Liberty Mut. Ins., 10 Cal.App.4th at 1287-1288) where Plaintiffs’ stated basis for the deposition is that the deposition is “appropriate …, especially now in light of recent events in Sacramento.” (Longyear Decl. ¶ 6, and Exh. 5 thereto.)

Moreover, as noted above, in seeking to depose a high level government official, Plaintiff was required not only to demonstrate that Defendant had personal knowledge, but also that “the information to be gained from the deposition is not available through any other source.” (Nagle, supra, 28 Cal.App.4th 1465, 1468 [emphasis added].) That showing has not been made.

Despite the above order granting the protective order, plaintiffs have again sought to take the deposition of Sheriff Scott Jones in violation of the protective order. Plaintiff contends that the prior motion for protective order was “granted, without prejudice.”

However, in order to conduct the desired deposition, plaintiffs would have to make an adequate showing on a motion to dissolve the protective order. In any event, the fact that plaintiff was able to conduct discovery to obtain facts to support a future deposition of the sheriff does not permit plaintiff to schedule a deposition in violation of the protective order. As there is a current protective order in place, no deposition of the Sheriff may go forward absent a noticed motion by plaintiffs to dissolve the protective order granted in this case on May 14, 2018 precluding the deposition of Sheriff Scott Jones, supported by the requisite showing of unique or superior

knowledge.

The opposition filed by plaintiffs is in the nature of a motion for reconsideration that fails to comply with CCP 1008 and CCP 1005. Even if it were a proper motion for reconsideration, none of the evidence set forth in the Declaration of Roger Dreyer supports changed circumstances that would warrant vacating the protective order and ordering the taking of the Sheriff’s deposition. The fact that Sergeant Owens and Lieutenant Mayes testified that the Sheriff dictates policies on, among other areas, the use of deadly force and crisis intervention training, and that Owens testified that the Sheriff is part of the Department’s executive committee, which reviews homicide investigations for officer involved shootings, is insufficient to make the required showing, detailed in the Court’s prior ruling granting the protective order, that establishes good cause to allow the deposition of an apex level employee. Indeed, the deposing party carries the burden to show “good cause that the official has unique or superior personal knowledge of discoverable information.” (Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1289.) “The general rule is based on 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.” (Nagle v. Superior Court (1994) 28 Cal.App.4th 1465, 1468.)

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.