Case Number: 20STCP03881    Hearing Date: February 11, 2021    Dept: 85

California Restaurant Association, Inc. v. County of Los Angeles Department of Public Health, et al, 20STCP03881

Tentative decision on motion for protective orders: conditionally denied

Respondents County of Los Angeles Department of Public Health (“Department” or “DPH”) and Barbara Ferrer (“Ferrer”) move for a protective order barring CRA from taking the depositions of Ferrer, Dr. Muntu Davis (“Davis”), Dr. Marianne Gausche-Hill (“Hill”), and Dr. Jeffrey D. Gunzenhauser (“Gunzenhauser”).

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

  1. Statement of the Case
  2. Petition

Petitioner CRA commenced this action on November 24, 2020.  The operative pleading is the Second Amended Petition (“SAP”) filed on December 17, 2020 against Respondents County of Los Angeles Department of Public Health (“Department”) and Barbara Ferrer (“Ferrer”), in her capacity as Director of the Department, alleging causes of action for administrative and traditional mandamus and declaratory relief and seeks the remedy of injunctive relief.  The verified SAP alleges in pertinent part as follows.

The Department has issued a series of health orders in an effort to halt the spread of COVID.[1]  The Department’s Health Order dated November 19, 2020 (“November 19 Order”) issued restrictions that outdoor dining and wine service seating must be reduced by 50%, or tables must be repositioned so that they are at least eight feet apart.

On November 22, 2020, the Department announced that it was modifying the November 19 Order to eliminate outdoor dining and drinking entirely at restaurants, bars, breweries, and wineries by issuing the Restaurant Closure Order.  The Restaurant Closure Order took effect on November 25, 2020.

The Department’s own data provide no support for the planned shutdown of outdoor restaurant operations.  The data tracks all non-residential settings at which three or more laboratory confirmed COVID cases have been identified.  Of the 204 locations on the list, fewer than 10% are restaurants.  Of the 2,257 cases identified on the list, fewer than 5% originate from restaurants.

On November 17, 2020, the Department held a hearing at which COVID and restaurant closures were discussed.  The Department scheduled another hearing for November 24, 2020.  On November 23, 2020, CRA sent a notice and objection letter to the Department asking it to cancel the proposed modification to the November 19 Order on the grounds that the spread of COVID is due primarily to people in close proximity at private gatherings and other sources, not from restaurants.

CRA contends that the Department prejudicially abused its discretion by having hearings at which it failed to take and consider relevant advice.  The Department made a decision to close restaurant dining that is not realistically designed to halt the spread of COVID.  The Department proceeded without, and in excess of, its discretion, failed to give CRA a fair hearing, and prejudicially abused its discretion.  The Restaurant Closure Order is not supported by any findings or the evidence.

The Department has not conducted any review of the potential impact or effectiveness of the Restaurant Closure Order, or if they have, they have not disclosed or articulated any such study to the public.  Nothing in the publicly-available materials indicates that Respondents conducted a careful study of the potential harm or impact of the Restaurant Closure Order.

In addition to the lack of scientific evidence establishing the public health benefits of prohibiting outdoor dining on a county-wide basis, the Department has provided no indication that it has estimated or otherwise taken into account any of the economic, social and public health costs of restricting outdoor dining.  Basic standards of public health policy design require a comparison of both costs and benefits of a policy to justify it from a scientific and ethical point of view.  The public record shows no provision of data whatsoever regarding the very substantial costs that arise from prohibitions such as that imposed by Los Angeles County.

There is no rational and legitimate medical basis supporting the breadth and scope of the Department’s total shutdown of outdoor dining.

  1. Course of Proceedings

On November 24, 2020, the court denied CRA’s ex parte application to stay the Restaurant Closure Order for failure to present sufficient evidence to make a prima facie case.  The court permitted CRA to renew its application as one for a temporary restraining order (“TRO”) and OSC re: preliminary injunction (“OSC”) if it presented evidence that the restrictions are unsupported and of irreparable harm.

On December 2, 2020, the court denied CRA’s ex parte application for a TRO, but it set an OSC for the instant date.

The independent calendar court assigned to Case No. 20STCV45134 found that it and Case No. 20STCP03881 are not related under CRC 3.300(a) and declined to relate them.  This court consolidated both cases only for hearing on the OSCs and designated 20STCP03881 as the lead case for the hearing.

On December 8, 2020, the court granted in part CRA’s application for a preliminary injunction.  The court enjoined Respondents from extending the Restaurant Closure Order past December 16, 2020 until it conducted an appropriate risk-benefit analysis.

On December 18, 2020, the Court of Appeal of the State of California, Second Appellate District, Division Four issued a temporary stay of the preliminary injunction order and also issued an order to show cause why a preemptory writ of mandate should not issue ordering the court to vacate the preliminary injunction.

  1. Applicable Law

Under CCP section 1987.1, when a subpoena requires the attendance of a witness or the production of books, documents or other things at the taking of a deposition, the court upon motion may make any order as may be appropriate to protect the parties, the witness or the consumer from unreasonable or oppressive demands including unreasonable violation of a witness’s or consumer’s right of privacy.  This can include an order quashing or modifying a subpoena or directing compliance with it upon such terms or conditions as the court shall declare, including protective orders.

The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.  CCP §2017.020(a).  The court may make this determination pursuant to a motion for protective order by a party or other affected person.  Id.  A protective order cannot be granted ex parte.  St Paul Fire & Marine Ins. Co. v. Superior Court, (1984) 156 Cal.App.3d 82, 85-86.  CCP sections 2025.420, 2030.090, 2031.060, 2032.510, and 2033.080 provide that a party upon whom interrogatories, inspection demands or request for admissions have been propounded may promptly move for a protective order.  This motion shall be accompanied by a declaration stating facts showing a good faith attempt at an informal resolution of each issue presented by the motion.  CCP §§ 2017.020(b), 2016.040.

The court shall restrict the frequency or extent of use of the discovery methods listed in CCP section 2019.010 if it determines either of the following:  (1) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (2) The selected method of discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.  CCP §2019.030(a).  The court may then make any order as may be appropriate to protect the parties, the witness, or the consumer from unreasonable or oppressive demands including unreasonable violation of a witness’s or consumer’s right of privacy.  CCP §1987.1.

The court shall impose monetary sanctions under CCP section 2023.010 against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of sanctions unjust.  CCP §2017.020(b).  There are numerous other statutes that authorize sanctions under CCP section 2023.010 against any “party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order.”  See e.g., CCP §§ 2019.030(a) (restrictions on frequency and extent of discovery); 2025.420 (depositions), 2030.090 (interrogatories), 2031.060 (requests for production); and 2032.510 (physical and mental examinations), and 2033.080 (requests for admission).

The apex deposition rule in California and federal court is that agency heads and other top governmental executives are not subject to deposition absent compelling reasons.  Westly v. Superior Court, (“Westly”) (2004) 125 Cal.App.4th 907, 910.  California courts have relied upon and cited to federal decisions in adopting this rule.  Liberty Mutual Ins. Co. v. Superior Court, (1992) 10 Cal.App.4th 1282, 1288 (holding that federal discovery decisions are persuasive authority absent contrary California law).  Heads of government agencies are not normally subject to deposition.  Kyle Engineering Co. v. Kleppe, (9th Cir. 1979) 600 F.2d 226, 231; U.S. v. Morgan, (1941) 313 U.S. 409, 422 (finding that Secretary of Agriculture’s examination should not have proceeded and threatened the integrity of the administrative process).  The apex deposition rule is established to relieve agency decision makers from the burdensomeness of discovery, to allow them to spend their valuable time on the performance of official functions.  Cornejo v. Landon, (N.D. Ill. 1981) 524 F.Supp. 118, 122; Nagle v. Superior Court, 28 Cal.App.4th 1465, 1468.

Compelling reasons to abrogate the apex deposition rule exist if the deposing party establishes that (1) the official has direct personal factual information pertaining to material issues in the action, and (2) the information sought is not available through any other source.  Westlysupra, 125 Cal.App.4th at 911; People ex rel. Lacey v. Robles, (2020) 44 Cal.App.5th 804, 826-827.  This 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.  Westlysupra, 125 Cal.App.4th at 910-11.

  1. Statement of Facts
  2.  Respondents’ Evidence[2]

On December 21, 2020, CRA noticed depositions for Ghaly, Ferrer, Davis, Hill, and Gunzenhauser.  Tokoro Decl., ¶¶ 2-6, Exs. A-E.  The deposition notices are the first discovery served on Defendants.  Plaintiff has sought no other discovery from the County as of the filing of the instant motion.  Tokoro Decl., ¶12.

DPH has been responsible for overseeing the County’s response to the COVID pandemic, including developing plans for mitigating the spread of the virus that causes COVID, collecting and reporting data in a variety of settings including workplaces, conducting case investigations and contact tracing, issuing directives and guidance for various organizations and business sectors, coordinating with cities within the County, and implementing directives issued by the State Department of Public Health (“CADPH”).  Gunzenhauser Decl., ¶3.

Gunzenhauser is the Director of DPH’s Disease Control Bureau and has been directly involved in the County’s COVID response.  Gunzenhauser Decl., ¶¶ 4, 6.  Since the onset of the pandemic, he has spent approximately 60 to 80 hours per week working on the County’s COVID response.  Gunzenhauser Decl., ¶7.  Urgent crises created by the pandemic are continuous throughout the week and require immediate responses.  Id.  As the pandemic has evolved through three surges, the DPH has continuously had to rebuild new and improved approaches to contain spread and to implement and assure strategies intended to protect the most vulnerable persons in our community and workers in essential and non-essential sectors.  Id.

Ferrer is the Director of DPH and reports to the Board of Supervisors (“Board”) and advises them on public-health related matters.  Gunzenhauser Decl., ¶9.  This includes submitting reports to the Board on DPH’s activities and budget needs, as well as reports on specific issues requested by the Board.  Id.  Ferrer frequently attends board meetings to make presentations and answer questions from members of the Board.  Id.  In 2020, Dr. Ferrer attended 15 of the 27 regularly scheduled meetings of the Board.  Id.

Ferrer leads multiple meetings throughout each day to receive information on the most urgent issues, provide on-the-spot direction, and organize data and information to share with the Board and others.  Gunzenhauser Decl., ¶11.  She is constantly in communication with board members, senior leaders in the state and federal government, and a wide range of chief executive officers and other leaders throughout the County.  Id.  Her schedule and activities are continually updated each day to provide leadership and guidance to stakeholders and constituents.  Id.

Throughout the pandemic, Ferrer has given briefings on at least a weekly basis, and at times, on a daily basis.  Gunzenhauser Decl., ¶12.  She also regularly gives interviews and fields questions from journalists to explain the pandemic and the County’s efforts to control it.  Id.  Ferrer issues regular press releases regarding the status of COVID in the County, the public health response, and what residents and workers in the County can take to protect their health.  Id.  Ferrer must make herself available 24 hours a day, seven days a week, and on holidays.  Gunzenhauser Decl., ¶13.  Since the beginning of the pandemic, Ferrer has worked approximately 80 hours per week, with approximately 90% of her time dedicated to the pandemic.  Id.

Davis is the County’s Health Officer, appointed by the Board in 2018.  Gunzenhauser Decl., ¶14.  As Health Officer, Davis serves as the County’s medical expert regarding public health matters and is responsible for providing guidance and direction to leadership across DPH.  Id.  During the pandemic, Davis has been additionally responsible for ensuring the County’s compliance with CADPH directives related to COVID.  Gunzenhauser Decl., ¶15.  Davis monitors COVID data on a daily basis and stays abreast of the latest scientific data regarding the virus and its modes of transmission.  Id.

Due to the evolving nature of the pandemic, Davis is required to continually adjust health orders as needed based on the level of community spread, the latest scientific data and information, and the needs and risks of various sectors in the County.  Gunzenhauser Decl., ¶15.  Davis issued the County’s first COVID related health order in March 2020 and has continuously issued revised orders to address changing circumstances.  Id.  Between March 2020 and January 2021, Dr. Davis has issued more than a dozen revised public health orders as well as numerous updates to its 23 current appendices.  Id.

Davis also regularly advises the Board on matters of public health generally and the COVID pandemic in particular, appearing with Ferrer in public Board meetings to answer questions from the Board and the public.  Gunzenhauser Decl., ¶16.

Gausche-Hill serves as Medical Director of the Emergency Medical Services Agency (“EMS Agency”).  Gunzenhauser Decl., ¶19.  In that role, Gausche-Hill works with EMS providers in the County, including hospitals and ambulance providers, issuing guidance regarding the management, care, and transfer of COVID19 patients, and developing strategies to avoid overwhelming the County’s healthcare system.  Id.

Gausche-Hill continually monitors and analyzes data regarding hospitalizations, ICU capacity, and 911 response times.  Gunzenhauser Decl., ¶20.  Gausche-Hill has developed and issued multiple directives regarding patient transfers, offloads, and diversions.  Id.  These directives are designed to address the intense pressure the pandemic has placed on the County’s EMS system.  Id.  These directives are thus necessary to conserve resources and avoid preventable deaths due to slow response times or lack of capacity during this ongoing surge.  Id.  Gausche-Hill monitors the status of the County’s EMS system, including hospital and ICU capacity and ambulance offload times, on a continual basis, and issues revised directives and guidance as needed.  Id.

Gausche-Hill also leads weekly EMS Agency meetings to provide COVID updates to hospitals and EMS service providers.  Gunzenhauser Decl., ¶21.  Throughout the pandemic, she has issued 13 updates on the status of the County’s EMS system and its ability to cope with COVID patients.  Id.  Since the beginning of the ongoing surge, she has issued seven directives regarding patient transport, changes to hospital services areas, offloading patients from ambulances, and the use of oxygen.  Id.

Ferrer, Davis, Gausche-Hill, and Gunzenhauser each play a critical role in the County’s management of the pandemic.  Gunzenhauser Decl., ¶23.  Each of their positions is unique as each is assigned to critical aspects of the County’s response effort.  Id.  The current COVID situation requires each of them to be continuously available seven days a week into the foreseeable future.  Id.  The prospect of crisis care and the current burden of death and illness require them to dedicate their full attention and available time to the County’s response efforts.  Id.

 As of January 2021, there are over a dozen lawsuits pending against the County and/or its public health officials challenging COVID related public health restrictions.  Gunzenhauser Decl., ¶24.  Requiring any of the proposed deponents to sit for a deposition would significantly impact their ability to respond to the daily demands of their duties.  Gunzenhauser Decl., ¶24.  This would negatively impact the County’s response efforts to the detriment of the County’s residents and healthcare system.  Id.

  1.  CRA’s Evidence

            In support of its opposition to CRA’s November 24, 2020 application for a preliminary injunction, Respondents relied on declarations from each of the proposed deponents presenting their opinions and conclusions as to why the Restaurant Closure Order is necessary.  Murray Decl., Exs. 2, 7.

            On January 5, 2021, the parties’ counsel met and conferred regarding the CRA’s deposition notices.  Murray Decl., ¶¶ 3, 6, Exs. 4-5.  CRA asked if there were any other witnesses that the County would agree to put up for deposition in lieu of the witnesses sought by CRA.  Murray Decl., ¶3.  The County refused to discuss any other possible witnesses and told Murray that it would proceed to file their motion for a protective order.  Id.  The County did not offer any other reasons for failing to attend the depositions without having first sought a protective order.  Id.

  1.  Reply Evidence[3]

            CRA’s claim that Respondents refused to discuss any other possible witnesses for deposition is not true.  Tokoro Reply Decl., ¶2.  At no time during the parties’ January 5, 2021 meet-and-confer call did CRA’s counsel propose alternative witnesses in lieu of Proposed Deponents.  Id.

  1. Analysis

            Respondents move for a protective order preventing CRA from taking the depositions of proposed deponents.  CRA opposes.

  1. Discovery and Rational Basis Review

Respondents note that it is undisputed that CRA’s claims of substantive due process and equal protection are subject to rational basis review, a highly deferential standard.  Mot. at 14-15; Reply at 10-11.  They argue that, because CRA’s claims do not involve fundamental liberty interests and are subject to rational basis review, no discovery is required.  Allowing CRA to conduct the depositions would constitute error because a legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.  Mot. at 17.  The mere existence of a dispute does not authorize the judiciary to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.  Mot. at 16; Reply at 10-11.

Respondents make no showing that discovery is precluded in a traditional mandamus case governed by a rational basis standard of review.  Of the cases Respondents rely upon, only Brach v. Newsom, (“Brach”) (C.D. Cal 2020) 2020 WL 7222103 addresses the permissibility of discovery in actions reviewed under the rational basis standard.  In Brach, the court rejected a request to depose the State’s expert regarding his scientific opinions and to obtain documents and communications on which the state relied to formulate in-person learning restrictions for public schools.  Id. at *10.  The court held that the request for discovery misunderstood the highly deferential inquiry of rational basis review.  Id.  Because the court could determine that the State’s restrictions were rationally related to the purpose of mitigating the spread of COVID based on the information before it, the plaintiffs could not succeed on their equal protection claim regardless of what facts they might prove in the litigation.  Id.  The discovery sought would not alter the court’s conclusion because the plaintiffs, who asserted no fundamental right, lacked a viable legal theory.  Id.

In contrast, CRA notes (Opp. at 16) federal cases stating that discovery is permissible in cases decided under rational basis review.  See, e.g., State v. U.S. Dep’t of Homeland Sec., (N.D. Cal. Apr. 1, 2020) 2020 WL 1557424, at *16  (Defendants have not cited any controlling case that prohibits discovery even in cases governed by rational basis review); see also Log Cabin Republicans v. United States, (C.D. Cal. 2009) 2009 WL 10675215, at *1  (Neither party has been able to cite authority directly addressing the propriety of exempting a defendant from discovery where a facial substantive due process or First Amendment challenge has been brought).  Respondents attempt to distinguish these cases, but the distinctions do not demonstrate their contention that discovery is impermissible.  Reply at 10.

Aside from the fact that Brach is non-binding federal authority and its facts are not analogous, Respondents make conclusory arguments that CRA cannot succeed on its claim regardless of what facts discovery might obtain because the Restaurant Closure Order was a “legislative choice”.  Respondents rely on Mobil Oil Corp. v. Super. Ct. (Cty. of San Diego), (1976) 59 Cal. App. 3d 293, 307, which addressed the lawfulness of two agency rules and held that their facial invalidity may be assailed by proof of facts showing no rational basis for the legislation and “no discovery is required to establish this contention”.

While it is true that legislation governed by the rational basis standard need not be supported by evidence or empirical data, Respondents fail to show that the Department’s Restaurant Closure Order is a legislative ordinance adopted by the Board of Supervisors.  It is not.  Rather, the Order is a quasi-legislative decision made by a non-elected official.  At this stage, we are well beyond any possibility that Respondents could rely on a legislative record to support the Restaurant Closure Order.  Respondents submitted lengthy declarations in opposition to the preliminary injunction, and CRA is not required to accept them on their face in attempting to demonstrate that the Restaurant Closure Order lacks a rational basis.

As the parties know, the court issued a preliminary injunction against the Restaurant Closure Order until the Department performed an appropriate risk/benefit analysis.  The court of appeal has stayed this injunction and soon will be deciding the County’s appeal.  It may be that Respondents will prevail on appeal as a matter of law – meaning that the appellate court will decide that the Restaurant Closure Order had a rational basis as a matter of law.  If so, the court agrees that any discovery will be unnecessary.  Until that happens, however, CRA is entitled to take discovery despite the rational basis standard of review.

CRA’s depositions are not precluded by the fact that the matter is subject to rational basis review.

  1. Apex Deposition Rule

Respondents contend that the apex deposition rule applies to bar the depositions of each Proposed Deponent, as each proposed deponent is a top-ranking County official.  Mot. at 18; Reply at 7-8.

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.  Westly v. Superior Court, (“Westly”) (2004) 125 Cal.App.4th 907, 910.  Compelling reasons to abrogate the apex deposition rule exist if the deposing party establishes that: (1) the official has direct personal factual information pertaining to material issues in the action, and (2) the information sought is not available through any other source.  Id. at 911; People ex rel. Lacey v. Robles, (2020) 44 Cal.App.5th 804, 826-827.  The deposing party bears the burden of establishing sufficiently compelling reasons to warrant a departure from the apex deposition rule.  Westlysupra, 125 Cal.App.4th at 911; Contractors State License Bd. V. Superior Court, (2018) 23 Cal.App.5th 125, 132.

  1. Applicability of the Rule

CRA argues that the apex deposition rule does not apply to Davis, Gunzenhauser, or Gausche-Hill because the rule typically shields high-ranking officials in the state or federal government, not subordinate positions in a county-level agency who are not department heads or chief policy makers.  Opp. at 18.

The court disagrees.  CRA’s argument contradicts Respondents’ evidence.  Davis is the Board-appointed County Health Officer and the top medical doctor in the County.  Gunzenhauser Decl., ¶¶ 14-16.  Gausche-Hill is the Medical Director of the EMS Agency, which oversees emergency medical services for the County and coordinates all public and private hospitals with emergency rooms in the County.  Gunzenhauser Decl., ¶¶ 18-19.  Gunzenhauser oversees Disease Control at the Department and has been directly involved in the County’s response to COVID since the outset, overseeing 11 divisions in the ICS.  Gunzenhauser Decl., ¶¶ 4-7.  CRA fails to explain how these individuals do not qualify as agency heads for the purposes of the apex deposition rule.

Respondents also assert that the fact that Davis, Gausche-Hill, and Gunzenhauser previously submitted declarations in this case does not mean they have forfeited the protections of the apex deposition rule.  Mot. at 19; Reply at 11-12.  CRA disputes this, asserting that whenever an individual submits a declaration, they are subject to deposition.  CRA relies on Vasquez v. Leprino Foods Co., (“Vasquez”) (E.D. Cal 2019) 2019 WL 4670871, asserting that it stands for the proposition that all declarants are subject to deposition.  Vasquez is non-binding authority and it did not address the issue of a declarant who is subject to the apex deposition rule.  Opp. at 18.

Respondents argue that the fact that Davis, Gausche-Hill, and Gunzenhauser previously submitted declarations does not mean that they have forfeited apex protections because “that argument has been specifically rejected by California courts.”  Mot. at 19.

This is an overstatement.  It is true that there is no bright line rule that the mere submission of a declaration makes the apex deposition rule inapplicable.  Westlysupra, 125 Cal.App.4th at 911-12.  Nonetheless, it is plain from Westly that a party who submits an apex officer’s declaration containing real facts pertinent to material issues exposes the officer to the risk of deposition.  Only where the declaration consists of conclusions with little or no factual information is the official not exposed to a deposition.  Id.  (issuing mandate requiring trial court protective order for controller who submitted no declaration and attorney general who submitted declaration consisting of conclusions with no pertinent factual information).

The apex deposition rule applies to each proposed deponent, but with a major caveat that a factual declaration exposes them to a deposition.

  1. Whether Proposed Deponents have Direct Personal Factual Information

Respondents do not address this issue other than to reiterate their arguments that the factual bases behind the Restaurant Closure Order are constitutionally irrelevant because the action is subject to rational basis review.[4]  Mot. at 19.

The factual information that proposed deponents can provide obviously is relevant.  CRA persuasively argues that each proposed deponent has unique personal knowledge related to material issues.  CRA lists specific examples in each proposed deponents’ declarations or public statements that demonstrate their personal involvement in the County’s decision to issue the Restaurant Closure Order as well as their personal opinions on the interpretation of the factual bases behind the Order.  Opp. at 10-15.  Respondents relied on these statements in opposing the preliminary injunction and defending the Restaurant Closure Order, making their knowledge material to the matter.

CRA has demonstrated that the proposed deponents have direct personal factual information material to the issues and have met the first prong of the apex deposition rule.

  1. Whether the Information Sought is Available from Other Sources

Respondents assert that CRA has failed to show that the information is not available from any other source.  Mot. at 19-20; Reply at 12-13.  CRA did not attempt any other form of discovery prior to noticing the depositions and did not consult with Respondents’ counsel prior to doing so.  Reply at 12.

CRA asserts that it has met this prong of the test because Respondents refused to discuss or offer any alternative methods of discovery and because there are no adequate substitutes to depose.  CRA notes that it identified the proposed deponents specifically because Respondents used their declarations as evidence.  If other officials could have provided this information, Respondents could have solicited declarations from them instead.  Opp. at 18-19.

Respondents have not provided, in meet-and-confer discussions, correspondence, or their motion, any possible alternative deponents or even any other sources of information.  Opp. at 19.  CRA specifically asked if there were any other witnesses that it could depose in place of the proposed deponents and Respondents refused to even consider this request.  Opp. at 19; Murray Decl. ¶3.  Respondents dispute that CRA ever proposed alternative deponents or that Respondents refused this request.  Tokoro Reply Decl., ¶2.

The court agrees with CRA.  The burden is on CRA to demonstrate that the information sought is not available from other sources and it has done so.  CRA has shown that the proposed deponents’ statements upon which Respondents relied in opposing the preliminary injunction, represented their personal opinions and knowledge for the County’s decision to impose the Restaurant Closure Order.  As CRA persuasively argues, it is entitled to cross-examine the proposed deponents on these statements.  Opp. at 10.  As a result, it is largely immaterial whether Respondents refused to propose alternative deponents.  Even if Respondents were willing to suggest alternative deponents, any alternates would be inadequate because CRA specifically seeks information of the proposed deponents’ knowledge and opinions which formed the basis of the Restaurant Closure Order.  No other individuals can provide the information sought.

CRA has met the second prong of the apex deposition test.

  1. Undue Burden

Respondents contend that the depositions should be barred because they will necessarily disrupt the County’s efforts to manage the ongoing and escalating crisis by pulling Proposed Deponents, who play significant roles in the County’s COVID response, away from their duties.  Mot. at 20; Reply at 13-14.  Dozens of lawsuits are pending against the State and the County in relation to COVID health orders and, if depositions were allowed in all such cases, Proposed Deponents would be burdened by these depositions to the point they are unable to carry out their crucial roles.  Reply at 13.

Respondents argument is untenable.  As CRA correctly notes (Opp. at 18), that the fact that an apex witness has a busy schedule is not a basis for foreclosing otherwise proper discovery.  WebSideStorysupra, 2007 WL 1120567; Moylesupra, 2012 WL 5373421.  Respondents’ claim that the proposed deponents have no time to sit for a deposition is undermined by the fact that Davis, Gunzenhauser, and Gaushe-Hill each provided lengthy declarations in opposing the preliminary injunction, and Guzenhauser provides a second declaration in opposition to this motion.  The proposed deponents are non-elected officials who have made orders affecting the lives of 10 million County residents for the past year.  They can be held accountable to explain why they have done so.

The fact that multiple lawsuits are pending against the County is also unavailing.  The proposed deponents did not submit lengthy declarations in every pending lawsuit.  Nor are they required to submit to depositions in every pending action.

The alleged burden on the proposed deponents is insufficient to justify issuance of a protective order.

  1. Conclusion

Respondents’ motion for a protective order is denied, but the denial is conditional.  Each of Ferrer, Davis, Hill, and Gunzenhauser shall submit to a deposition, but the depositions will take place only if the court of appeal’s decision does not uphold the Restaurant Closure Order as a matter of law.  If so, the four deponents must sit for a deposition within 15 calendar days of the date of the appellate decision.  If the appellate court upholds the Restaurant Closure Order as a matter of law, no deposition is required.

[1] For convenience, the court will refer to COVID and SARS-CoV-2 as “COVID”.

[2] Respondents request judicial notice of: (1) the CDC COVID Data Tracker, accessed on January 12, 2021 (Ex. 1); (2) the LA County Daily COVID Data Information Page, accessed on January 13, 2021 (Ex. 2); (3) the CDC COVID Frequently Asked Questions, accessed on January 12, 2021 (Ex. 3); (4) the November 22, 2020 LA County Public Health Press Release, “Public Health to Modify Health Officer Order to Restrict Dining at Restaurants, Breweries, Wineries and Bars Amid Surge in Cases – 5-Day Average of New Cases is 4,097,” accessed on January 12, 2021 (Ex. 4); (5) the Los Angeles County Department of Public Health Guidance for Monitoring EMS Personnel, accessed on January 12, 2021 (Ex. 5); (6) the Huntington Hospital Patient Information Sheet Care During a Public Health Emergency, accessed on January 12, 2021 (Ex. 6); (7) the December 3, 2020 Regional Stay Home Order announced on December 3, 2020 (Ex. 7); (8) the CDC Strategies to Mitigate Healthcare Personnel Staffing Shortages, updated December 14, 2020, accessed on January 12, 2021 (Ex. 8); (9) the December 22, 2020 EMS Reference 845: Treat and Refer for Mild Respiratory Illness During COVID Outbreak (Ex. 9); (10) the December 23, 2020 EMS Offload of ALS and BLS Patients to the Emergency Department Waiting Room (Directive #4), accessed on January 12, 2021 (Ex. 10); (11) the December 23, 2020 “Projections of Hospital-based Healthcare Demand due to COVID in Los Angeles County” accessed on January 12, 2021 (Ex. 11); (12) the December 24, 2020 Los Angeles Times article titled “L.A. County records 140 COVID deaths in one day, a new record,” accessed on January 12, 2021 (Ex. 12); (13) the December 30, 2020 County of Los Angeles Public Health Order (Ex. 13); (14) the December 30, 2020 Los Angeles Times article titled “Paramedics having some patients stay home as hospitals struggle with COVID wave,” accessed on January 12, 2021 (Ex. 14); (15) the January 4, 2021 EMS Revision #3 – 9-1-1 Transportation of Patients with a POLST and Comfort-Focused Care Directive (COVID Surge Directive #2), accessed on January 12, 2021 (Ex. 15); (16) the January 4, 2021 EMS Revised EMS Transport of Patients in Traumatic and Nontraumatic Cardiac Arrest (Directive #6), accessed on January 12, 2021 (Ex. 16); (17) the January 4, 2021 EMS Use of Oxygen (Directive #7), accessed on January 12, 2021 (Ex. 17); (18) the January 5, 2021 NPR article titled “’Things Are Worse Than People Think’: LA County Official On New Directives For EMS,” accessed on January 12, 2021 (Ex. 18); and (19) the December 2, 2020 County of Los Angeles Public Health News Release, titled “COVID Deaths Increase as L.A. County Continues to Break COVID Hospitalizations Record – 40 New Deaths and 5,987 New Confirmed Cases of COVID in Los Angeles County,” accessed on January 13, 2021 (Ex. 19).

The request is granted as to Exhibits 7 and 13, which are official acts.  Evid. Code §452(c).  The remaining exhibits are not subject to judicial notice and the request is denied.

[3] In support of their reply, Respondents request judicial notice of: (1) the January 25, 2021 County of Los Angeles Public Health News Release, titled “Los Angeles County to Align with State Health Officer Order Reopening Key Sectors, Including Outdoor Dining on Friday – Public Health Reports 43 New Deaths and 6,642 New Confirmed Cases of COVID in Los Angeles County” accessed on February 3, 2021 (Ex. 20); (2) the January 29, 2021 County of Los Angeles Public Health News Release, titled “Outdoor Dining Service Returns with New Mandatory Safety Measures 228 New Deaths and 7,112 New Confirmed Cases of COVID in Los Angeles County” accessed on February 3, 2021 (Ex. 21); (3) the County of Los Angeles Department of Public Health Order “Reopening Safer at Work and in the Community for Control of COVID” dated January 29, 2021 (Ex. 22); (4) the County of Los Angeles Department of Public Health Order of the Health Officer “Protocol for Restaurants, Breweries and Wineries: Appendix I” accessed on February 3, 2021 (Ex. 23); (5) the California Department of Public Health “Public Health Officials Lift Regional Stay at Home Order for All Regions” press release dated January 25, 2021 (Ex. 24); and (6) the Blueprint for a Safer Economy, accessed on February 4, 2021 (Ex. 25).

The request is granted as to Exhibits 22, 23, 25.  Evid. Code §452(b), (c).  The press releases (Exhibits 20-21, 24) are not official acts and the request is denied.

[4] In reply, Respondents argue that the proposed deponents do not have material knowledge because the Restaurant Closure Order is no longer in effect.  Reply at 9, 13.  Essentially, Respondents are arguing that the issue is moot.  Aside from the fact that no one doubts the Department will re-impose a restaurant closure order if there is another COVID surge, the court expects the mootness question to be addressed by the appellate court.  If the case is not moot because it is capable of repetition, contrary to Respondents’ argument the deponents knowledge would yield material information for any future restaurant closure order.  Reply at 9.