Ross v. Superior Court, No. D079278 (D4d1 Apr. 19, 2022)
This is a retaliation case brought by an assistant DA in Riverside who claims that the DA—who we’ll call DA #2, for reasons soon to be apparent—forced him to prosecute and innocent person, coerced him to withhold Brady evidence, and punished him when he resisted. During the deposition of the DA's predecessor (DA #1), DA #1 testified that he and the new DA (DA #3) were of the view that DA #2 was ethically challenged. DA #1 also testified that DA #3 told him that unnamed attorneys from the county had leaned on him to make sure DA #3 didn’t express that opinion in a deposition.
Plaintiff subpoenaed DA #3—who is currently in office. But to take the depo of a high government or corporate official—commonly called an “apex deposition”—the noticing party needs to show that: (1) the witness has percipient factual knowledge; and (2) it can’t get the information by some other means. The trial court quashed the subpoena because Plaintiff didn’t make that showing. Plaintiff took a writ.
The Court of Appeal found that the trial court was mostly right. Most of Plaintiff’s theories of relevance were weak or the evidence otherwise available. But in a limited way, the standard was satisfied. Efforts to tamper with witnesses or suborn perjury are relevant and admissible because they show consciousness of guilt. And only DA #3 can provide that info. (Indeed, DA #1’s testimony about it is hearsay.) So to that limited extent, the motion to quash should have been denied.
Writ granted in part.
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