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Court of Appeal:
Prosecutors May Be Deposed if There’s ‘Extremely Good Cause’
Opinion Relates to Civil Enforcement Action Brought in Name of ‘the People’
By a MetNews Staff Writer
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Above is logo of the defendant in a civil enforcement actions brought by the district attorneys of Los Angeles County and three other California counties. The Court of Appeal held Thursday that there is no absolute exemption for the People from being deposed. |
Div. Two of the Fourth District Court of Appeal has held that the defendant in a civil enforcement action may depose the prosecuting agency’s representative—but only if there’s a showing of “extremely good cause.”
The holding, in an opinion by Justice Michael J. Raphael, comes in a case in which the district attorneys of Los Angeles, Riverside, San Diego, and Santa Clara counties, acting on behalf of the People, are suing Credit One for alleged violations of California’s Rosenthal Fair Debt Collection Practices Act and the Unfair Competition Law, alleging practices “that involve unreasonably frequent and harassing phone call patterns and conduct.” They sought a writ of mandate challenging the denial by Riverside Superior Court Judge Harold W. Hopp of their motion for a protective order barring the deposition of the “person most qualified” (“PMQ”).
Hopp did limit matters into which inquiry could be made.
Raphael’s Decision
Raphael said in an opinion filed Thursday:
“[W]e reject the notion that the People (through PMQs) may never be deposed.”
In setting forth the standard that must be utilized in determining whether a protective order is appropriate, he pointed to the 2006 decision by the Fourth District Court of Appeal’s Div. Three in Carehouse Convalescent Hospital v. Superior Court. There, Presiding Justice David Sills (now deceased) wrote:
“The adversarial system of justice presumes that the attorneys for each side oppose one another, not depose one another. We issue a peremptory writ because plaintiffs have failed to make the requisite showing of ‘extremely’ good cause to overcome the presumption against taking the deposition of [opposing counsel].”
Raphael noted that “there is a dearth of caselaw addressing whether and how Carehouse applies in a civil enforcement action brought by the People.” Embracing the standard stated in that case, he declared:
“[W]e hold that in a civil enforcement action brought by a district attorney (or a similar government agency, like the state’s Attorney General) on behalf of the People, the defendant may seek to depose the People’s person or persons most qualified under section 2025.230. If the People seek a protective order, the trial court should analyze whether the deposition should proceed using the Carehouse standard for depositions of opposing counsel.”
The case was remanded “for the trial court to exercise discretion in the first instance under the standard clarified in this opinion.”
Two Code Sections
In concluding that the People’s PMQ may, in some instances, be deposed, the justice relied upon two Code of Civil Procedure sections. Sec. 2021.0 provides:
“Any party may obtain discovery within the scope delimited by Chapter 2…by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.”
Sec. 2025.230 spells out:
“If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.”
Applies Wording
Applying language of those sections, Raphael wrote:
“The People are a party to this action. The first sentence of section 2025.010 defines a ‘person’ who may be deposed to include ‘any party to the action.’ Taking this sentence in isolation, the People are subject to deposition. And since the People are not a ‘natural person,’ the procedures of section 2025.230 apply, including the requirement that they designate one or more persons most qualified to testify on their behalf as to noticed topics. The person deposed ‘may’ be someone within the categories listed in the second sentence of the section. Especially given the broad scope of the first sentence, however, we see no reason to read the language as meaning the deponent may only be someone in those categories.”
The district attorneys argued that “the district attorney is not the plaintiff, nor a party to the action, but simply the legal representative of the People” and not a “person” subject to being deposed. Raphael responded:
“The People’s reading of the statute is not the most straightforward one. While the first sentence of section 2025.010 deems ‘any person’ subject to deposition, including ‘any party,’ the People read the provision as if it said ‘any party except the People of the State of California’ by arguing that the Legislature implied an exception to ‘any party’ in the next sentence. The People’s interpretation is, at best, in tension with the principle of liberal construction in favor of discovery.”
The case is People v. Superior Court (Credit One Bank), E084854.
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