Filed 4/26/18; Certified for Publication 5/9/18 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

CONTRACTORS’ STATE LICENSE 

BOARD,

Petitioner,

v.

THE SUPERIOR COURT OF CONTRA 

COSTA COUNTY,

Respondent;

BLACK DIAMOND ELECTRIC, INC.,

Real Party in Interest.

 A153684

 (Contra Costa County

 Super. Ct. No. C1702451)

BY THE COURT*:

The Contractors’ State License Board (the Board) seeks a writ of mandate and a

stay to prevent the “apex deposition” of David R. Fogt. Fogt is the Board’s Registrar of 

Contractors, a position which makes him the Board’s secretary and chief executive 

officer. After real party in interest, Black Diamond Electric, Inc. (BDE), noticed Fogt’s 

deposition in a declaratory judgment action BDE had brought against the Board, Fogt 

sought a protective order to prevent the deposition. Respondent court denied the motion 

for a protective order, and the Board now seeks writ review.

We conclude that under well-established California law, the head of a government 

agency, such as Fogt, generally is not subject to deposition. “An exception to the rule 

 

* Humes, P.J., Margulies, J., and Dondero, J.
2

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.” (Westly v. Superior Court (2004) 

125 Cal.App.4th 907, 911 (Westly).) We hold that this exception does not apply in this 

case. We therefore grant the Board’s petition and issue a peremptory writ in the first 

instance, as we previously informed the parties was possible. (See Palma v. U.S. 

Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177–180 (Palma).)

FACTUAL AND PROCEDURAL BACKGROUND

BDE is a licensed electrical contractor and is currently the subject of a disciplinary 

proceeding brought by the Board. The Board’s March 20, 2017 accusation alleges that 

uncertified BDE employees performed work that required certification, and that certified 

trainee/employees performed work without required supervision by a certified electrician. 

The disciplinary proceeding is currently pending before the Office of Administrative 

Hearings. 

After the disciplinary proceeding was initiated, BDE filed a complaint in Contra 

Costa Superior Court. The complaint seeks a declaration as to the proper definition of 

certain terms used in the Labor Code, including “electrician,” “electrical work,” and 

“direct supervision.” (See Lab. Code, §§ 108, subd. (c), 108.2, subd. (a), 108.4, 

subd. (a)(3).) In the alternative, the complaint seeks a declaration that the terms are 

impermissibly vague. Finally, the complaint seeks a “permanent injunction enjoining and 

restraining the [Board] from seeking to enforce the ‘direct supervision’ provision of 

Labor Code section 108.4[, subdivision ](a)(3) until the legislation provides the [Board] 

with further clarification.”1

BDE submitted interrogatories and document production requests to the Board on 

January 19, 2018. One week later, BDE served a notice of deposition for Fogt. Fogt 

 

1 On February 5, 2018, the Board filed a demurrer to BDE’s complaint. 

Respondent had not ruled on the demurrer by the time the instant petition was filed, and 

the arguments raised in the demurrer are not before us.
3

currently serves as the Board’s Registrar of Contractors—the “executive officer and 

secretary of the board.” (Bus. & Prof. Code, § 7011, subd. (b).) BDE noticed the 

deposition for February 16. 

The Board then filed a motion for protective order to prevent the deposition. It 

argued the deposition was improper before a decision on the Board’s demurrer, and it 

contended that the deposition would be harassing and burdensome. As to the latter 

contention, the Board argued that BDE was seeking to depose Fogt on the definition of 

statutory terms, which are issues of law, not fact. 

In its opposition to the motion, BDE made clear that it sought to depose Fogt 

concerning the Board’s “operating definition of ‘electrician’ and ‘direct supervision’ . . . 

for purpose of enforcement . . . .” The Board filed a reply in which it raised an argument 

it had not developed in its motion. Citing numerous California cases, it contended that 

top government executives are normally not subject to deposition. 

On February 13, respondent issued a tentative ruling denying the motion. The 

following day, the parties appeared at a hearing on the motion. Before the hearing, 

counsel for the Board notified respondent and opposing counsel that he would focus his 

argument on the law prohibiting the deposition of high government officials, noting that 

the argument had not been addressed in the tentative ruling. At the hearing, the parties 

engaged in what BDE’s counsel describes as a “robust argument” about the relevant 

California and federal case law and the facts of the case.2 

On February 14, respondent issued a written order denying the Board’s request for 

a protective order. Its written order addressed the argument raised in the Board’s reply 

regarding the deposition of high government officials. Respondent distinguished the 

cases on which the Board relied, ruling that Fogt allegedly “has direct factual information 

 

2 The hearing was not transcribed, but counsel for both parties have filed 

declarations pursuant to California Rules of Court, rule 8.486(b)(3)(A) “fairly 

summarizing the proceedings, including the parties’ arguments and any statement by the 

court supporting its ruling.”
4

and that he was directly involved in issues related to this case before his appointment as 

Executive Officer.” 

On February 21, the Board filed the current petition seeking a writ of mandate and 

an immediate stay. The following day, we issued a temporary stay of the order pending 

further briefing and consideration by this court. In the stay order, we gave Palma notice, 

informing the parties that we might proceed by issuing a peremptory writ of mandate in 

the first instance.

BDE has submitted informal opposition, and the Board has filed a reply.

DISCUSSION

The Board contends that high government officials like Fogt generally are not 

subject to deposition.3 The Board acknowledges the existence of the exception for 

officials possessing direct, personal, factual information relating to material issues in the 

action, but it argues that the information BDE seeks is not factual in nature. In addition, 

 

3

In its opposition, BDE objects that the Board first raised this argument in its 

reply papers below. Courts often will not consider arguments first raised in a reply brief 

because of the potential unfairness to the opposing party, who is deprived of the 

opportunity to respond to the new argument. (E.g., St. Mary v. Superior Court (2014) 

223 Cal.App.4th 762, 783.) Here, however, we conclude that BDE had a sufficient 

opportunity to respond to the Board’s contention.

First, the Board’s motion for protective order relied on the “policy of protecting 

senior officials of state agencies and professional boards from depositions” and cited 

Board of Dental Examiners v. Superior Court (1976) 55 Cal.App.3d 811. BDE’s 

opposition claimed the Board had cited that case “seemingly for the proposition that 

agency heads can never be deposed.” BDE therefore appears to have understood the 

basic thrust of the Board’s argument regarding the deposition of high government 

officials, even if the Board did not fully develop the argument until its reply. Second, 

BDE’s counsel states that at the oral hearing, the parties were given “unlimited time to 

argue [the Board’s] motion” and engaged in “a robust argument” on the issue raised in 

the petition. BDE therefore had an opportunity to respond. Third, courts have discretion 

to accept arguments made for the first time in reply. (Grappo v. McMills (2017) 

11 Cal.App.5th 996, 1009.) In this case, respondent chose to consider the issue the Board 

raises in its petition, and the court resolved it adversely to the Board. Finally, BDE has 

briefed the issue fully in this court. In these circumstances, we conclude BDE will not be 

prejudiced if we address the arguments raised in the Board’s petition.
5

the Board asserts that BDE has not met its burden of showing that the information is not 

available from any other source. We agree with the Board.

I. California Law Generally Prohibits Depositions of High Government Officials.

“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, supra, 125 Cal.App.4th at p. 910.) “The general rule is based upon 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 (Nagle), quoting Union Savings Bank of Patchogue, New 

York v. Saxon (D.D.C. 1962) 209 F.Supp. 319, 319–320.)

This rule has been applied in numerous cases involving an array of constitutional 

officers, board members, and agency heads. (See Westly, supra, 125 Cal.App.4th at 

p. 912 [granting writ of mandate to prevent depositions of state Controller and Attorney 

General]; Nagle, supra, 28 Cal.App.4th at pp. 1467–1468 [granting peremptory writ to 

prevent depositions of director of California Employment Development Department and 

former director of California Department of Health Services]; Deukmejian v. Superior 

Court (1983) 143 Cal.App.3d 632, 635 (Deukmejian) [granting peremptory writ in first 

instance ordering superior court to quash notice to appear directed at Governor]; State 

Board of Pharmacy v. Superior Court (1978) 78 Cal.App.3d 641, 644–646 (State Board 

of Pharmacy) [issuing peremptory writ of mandate directing superior court to quash 

subpoena for deposition of Attorney General]; Board of Dental Examiners v. Superior 

Court, supra, 55 Cal.App.3d at pp. 813–814 [issuing writ of prohibition to prevent 

deposition of members of state licensing board].) As we observed 40 years ago, “ ‘the 

administrative head of a large executive department should not be called upon personally 

to give testimony by deposition . . . unless a clear showing is made that such a proceeding 

is essential to prevent prejudice or injustice to the party who would require it.’ ” (State 
6

Board of Pharmacy, at p. 645, quoting Wirtz v. Local 30, International U. of Operating 

Engineers (S.D.N.Y. 1963) 34 F.R.D. 13, 14.) Thus, where a party seeks to depose a 

high government official, and the official moves for a protective order, the burden is on 

the deposing party to show that compelling reasons exist for permitting the deposition. 

(See Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1289 

[deposition of corporate president].)

An exception will be made to this rule only when the deposing party makes two 

showings. First, the deposing party must show that the government official “has direct 

personal factual information pertaining to material issues in the action . . . .” (Westly, 

supra, 125 Cal.App.4th at p. 911, italics added.) Second, the deposing party must also 

show “the information to be gained from the deposition is not available through any other 

source.” (Ibid.)

II. BDE Has Failed to Show the Exception Applies.

BDE does not dispute that California law generally does not allow high 

government officials to be deposed. Instead, it appears to contend that Fogt is not such 

an official because it seeks to depose him regarding information gained during his earlier 

career with the Board. BDE also argues that Fogt has unique personal knowledge of facts 

concerning the Board’s interpretation and enforcement of Labor Code section 108 et seq. 

For these reasons, BDE contends that Fogt’s deposition is proper.

A. As Registrar of Contractors, Fogt Is a Highly Placed Public Officer.

We reject BDE’s argument that Fogt is not the kind of “highly placed public 

officer” to whom the general rule applies. (State Board of Pharmacy, supra,

78 Cal.App.3d at p. 644.) The general rule applies to “agency heads and other top 

governmental executives” (Westly, supra, 125 Cal.App.4th at p. 910), and Fogt, as 

Registrar of Contractors, is the “executive officer and secretary of the board” (Bus. & 

Prof. Code, § 7011, subd. (b)). The rule that top governmental executives are generally 

not subject to deposition has been applied to the heads of other California state agencies. 

(See Nagle, supra, 28 Cal.App.4th at pp. 1467–1468 [rule applied to director of 
7

California Employment Development Department and former director of California 

Department of Health Services].) We see no reason why it should not apply to Fogt.

It does not matter that BDE claims to seek information Fogt gained before he was 

elevated to his current position. The rule prohibiting the deposition of agency heads and 

other highly placed public officials is grounded on the concern that such proceedings will 

consume the officials’ time and hamper them in the conduct of government business. 

(Nagle, supra, 28 Cal.App.4th at p. 1468; see State Board of Pharmacy, supra,

78 Cal.App.3d at p. 644 [“It is patently in the public interest that the Attorney General be 

not unnecessarily hampered or distracted in the important duties cast upon him by 

law.”].) This concern is present whether the official gained the information sought while 

in his or her present position or while serving in prior, lower ranking positions at the 

agency. (See Deukmejian, supra, 143 Cal.App.3d at p. 634 [Governor alleged to have 

personal knowledge of prison conditions based on prior service as a state legislator and 

years of service in the Attorney General’s office].) We assume that agency heads will 

frequently be drawn from the ranks of agency employees with many years of experience. 

But the mere fact that a party seeks information acquired before the official assumed the

position of agency head does not render the deposition any less time-consuming or 

disruptive of government business.

B. The Information BDE Seeks Is Not Factual.

In this court, BDE explains that the purpose of Fogt’s deposition is “to inquire 

about the [Board’s] prior administrative interpretations of the statute, and prior 

applications of it, that occurred by his direction, through his authority since his 

appointment as Enforcement Chief.” We agree with the Board that these are issues of 

law, not fact.

We begin by noting that BDE’s action is one for declaratory judgment, which asks 

the court to construe various statutory terms. The proper interpretation of terms used in 

the Labor Code is an issue of law. (See State Building & Construction Trades Council of 

California v. Duncan (2008) 162 Cal.App.4th 289, 304 [proper interpretation of term 

“public work” in Labor Code is pure legal issue]; Handyman Connection of Sacramento, 
8

Inc. v. Sands (2004) 123 Cal.App.4th 867, 881 [interpretation of Contractors’ State 

License Law is matter of law subject to independent review].) Put another way, BDE 

seeks to have respondent determine whether the Board’s interpretation and manner of 

enforcement of the specified Labor Code provisions are consistent with the statutes at 

issue. This is unquestionably a legal issue. (Transcentury Properties, Inc. v. State of 

California (1974) 41 Cal.App.3d 835, 842 (Transcentury Properties) [“Respondents’

contention that regulations promulgated by the state commission are not authorized by 

the [California Coastal Zone Conservation] Act raises a legal question.”].) As BDE 

admitted below, “[t]he underlying issues are ones of legal interpretation . . . .” 

The only information relevant to the Board’s interpretation of the Labor Code will 

be the text of the statutes, legislative history, and perhaps official administrative 

interpretations.4 We fail to see what factual information Fogt could supply on those 

issues. Indeed, BDE does not appear to claim Fogt has such information. To the 

contrary, its counsel states that “we selected him because Mr. Fogt interpreted Labor 

Code section 108, et seq. and established the policies for enforcing his interpretation.” 

While Fogt certainly has knowledge of the Board’s interpretation of the statutes and its 

enforcement history, that knowledge is not personal, factual information. (Westly, supra,

125 Cal.App.4th at p. 911 [“While the Controller and Attorney General unquestionably 

have knowledge of what their official duties are, those duties are a matter of law, not 

personal factual information.”]; Deukmejian, supra, 143 Cal.App.3d at pp. 634–635 

[distinguishing Governor’s knowledge of administration policies from factual knowledge 

of prison conditions].)

 

4 As one federal court explained in a case seeking the testimony of members of the 

Federal Communications Commission (FCC) and its employees, “[t]he FCC . . . acts 

officially only ‘through the adoption of rules, orders, policy statements which reflect its 

views and commands.’ [Citation.] These statements are not subject to interpretation by 

an FCC Commissioner or employee (past or present) any more than a judicial decision is 

subject to elaboration or interpretation by way of the subsequent testimony of the judicial 

officer who rendered it.” (U.S. v. American Tel. and Tel. Co. (D.D.C. 1981) 524 F.Supp. 

1381, 1387.)
9

Furthermore, in suits seeking review of administrative action, discovery is not 

available regarding pure issues of law. In State of California v. Superior Court (1974) 

12 Cal.3d 237 (State of California), the court held that objections to interrogatories 

regarding the constitutionality of the statute at issue should have been sustained “because 

they seek to determine opinions of the [California Coastal Zone Conservation] 

Commission regarding the constitutionality of the [California Coastal Zone 

Conservation] Act, and such opinions have no relevance whatever to the purely legal 

problem of determining the validity of the Act on its face.” (Id. at p. 256, fn. omitted.) It 

further held that the commission should not be compelled to answer interrogatories that 

“seek to determine what material the Commission read and relied upon in reaching its 

determination and . . . seek to probe the mental processes of the Commission . . . .” (Id.

at p. 258.) The court cited the seminal case of United States v. Morgan (1941) 313 U.S. 

409, in which the United States Supreme Court “held . . . that ‘it was not the function of 

the court to probe the mental processes of the Secretary [of Agriculture].’ [Citation.] 

Just as a judge cannot be subjected to such a scrutiny [citation], so the integrity of the 

administrative process must be equally respected.” (Id. at p. 422.)

Thus, BDE is not permitted to ask agency officials how they personally interpret 

statutes administered by the Board, since their personal views are irrelevant to the purely 

legal issue of statutory construction. (State of California, supra, 12 Cal.3d at p. 256.) To 

the extent BDE contends that the Board’s interpretation of the Labor Code is inconsistent 

with the statutes, “[t]here is no need for discovery with respect to this contention.”5 

 

5

It does not matter that BDE views Fogt as the person most knowledgeable in 

these matters. In State Board of Pharmacy, the issue in the underlying action related to 

an award of attorney fees, but we rejected the argument that the deposition of the 

Attorney General should be permitted because he “has a ‘unique perspective’ on the 

effect of this lawsuit and the factors related to fixing attorneys’ fees.” (State Board of 

Pharmacy, supra, 78 Cal.App.3d at p. 644.) Similarly, in Nagle, the plaintiff sought to 

depose the directors of the California Employment Development Department and 

Department of Health Services. (Nagle, supra, 28 Cal.App.4th at p. 1467.) Division 

Four of this district rejected the argument that the directors should be deposed because 

they had not claimed that “they ha[d] no knowledge of, for example, other cases in which 
10

(Transcentury Properties, supra, 41 Cal.App.3d at p. 842 [party’s contention that agency 

regulations were not authorized by enabling statute raised purely legal issue on which 

discovery was unnecessary]; see also Guilbert v. Regents of University of California

(1979) 93 Cal.App.3d 233, 246 [official’s “ ‘understanding’ as to whether he was 

exercising adjudicatory powers or his ‘belief’ as to statutory constraints on the exercise of 

his powers are totally irrelevant to the issues of whether respondents granted Guilbert a

fair trial, abused their discretion or exceeded their jurisdiction”].)

Nor may BDE ask Fogt why the Board exercised its discretion to initiate any 

particular enforcement action. In Simplex Time Recorder Co. v. Secretary of Labor (D.C. 

Cir. 1985) 766 F.2d 575 (Simplex), the District of Columbia Circuit Court of Appeals 

rejected an argument similar to the one BDE makes here, explaining, “Simplex has not 

suggested any information in the possession of these officials (regarding general 

enforcement proceedings) that it could not obtain from published reports and available 

agency documents. From its brief, we gather that Simplex wishes to question these 

officials on purely discretionary decisions concerning enforcement of the OSHA Act. 

This runs counter to the cautions enunciated in Morgan, supra, et al.” (Id. at p. 587.)

BDE’s reliance on Green v. Baca (C.D.Cal. 2005) 226 F.R.D. 624 is misplaced. 

In that case, the court refused to preclude the testimony of the Los Angeles County 

Sheriff in an action challenging the sheriff’s implementation of jail release policies. But 

the court based its decision, in part, on its view that the sheriff was not a high government 

official. It cited authority holding that police chiefs were not such officials, and it noted 

that the sheriff had cited no contrary authority. (Id. at p. 649.) As noted earlier, that is 

not the case here. Green v. Baca also appears somewhat inconsistent with Deukmejian,

where the court held that the Governor could not be deposed merely because he was 

knowledgeable about conditions in state prisons, since the true focus of the inquiry was 

 

subpoenas were issued or general knowledge of departmental requirements . . . .” (Id. at 

p. 1468.)
11

executive policies, not prison conditions. (Deukmejian, supra, 143 Cal.App.3d at 

pp. 634–635.)

D. BDE Has Not Shown that the Information Is Unavailable from Any Other 

Source.

To satisfy the second prong of the exception, BDE must show that “the 

information to be gained from the deposition is not available through any other source.” 

(Westly, supra, 125 Cal.App.4th at p. 911.) BDE has not done so.

In the court below, BDE argued that the Board’s enforcement of the statutory 

provisions at issue was “contrary to its own published interpretations.” BDE therefore 

recognizes that published interpretations of the statutes exist. BDE does not explain why 

it cannot use such “published reports and available agency documents” to discern how 

the Board construes the statutory terms it finds unclear. (Simplex, supra, 766 F.2d at 

p. 587; see State Building & Construction Trades Council of California v. Duncan, 

supra, 162 Cal.App.4th at p. 304 [“the opinion of an administrative agency as to a 

statute’s meaning may be helpful even if it is ‘not binding or necessarily even 

authoritative’ ”].) Thus, the information BDE seeks from Fogt might just as easily be 

derived from “ ‘orders [or] policy statements which reflect [the Board’s] views and 

commands.’ ” (U.S. v. American Tel. and Tel. Co., supra, 524 F.Supp. at p. 1387.) BDE 

is free to seek such materials from the Board in discovery.

BDE complains that the Board’s responses to its discovery requests have been 

inadequate and evasive. Even if this is true, BDE has not shown it has availed itself of 

the remedies provided by the Civil Discovery Act. If it is truly dissatisfied with the 

Board’s discovery responses, it may seek an order compelling more complete answers. 

(See, e.g., Code Civ. Proc., § 2030.290, subd. (b).) Although BDE has filed an appendix 

of exhibits, nothing in its appendix shows that it has moved to compel further responses 

from the Board.

III. A Peremptory Writ in the First Instance Is Appropriate.

In these circumstances, we will issue a peremptory writ in the first instance. 

Generally, we employ “the accelerated Palma procedure . . . . only when petitioner’s 
12

entitlement to relief is so obvious that no purpose could reasonably be served by plenary 

consideration of the issue . . . or where there is an unusual urgency requiring acceleration 

of the normal process.” (Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) That is the case 

here. As we have explained, on the record before us, respondent abused its discretion in 

denying the Board’s motion for a protective order. Once Fogt’s deposition is taken, the 

harm cannot be undone, and writ review is thus the only means of securing the relief the 

Board seeks. (See Board of Administration v. Superior Court (1975) 50 Cal.App.3d 314, 

324 [“Appeal is not an adequate remedy since if Board foregoes the right to review by 

prohibition it is left with the choice of supplying information to which City is clearly not 

entitled or suffering the risk of a default judgment on a debatable point of law. Board is 

entitled to a legal answer on the issue before it is compelled to make that choice.”].) 

“Because there are no disputed factual issues, the legal error is clear and the matter 

should be expedited, a peremptory writ in the first instance is appropriate.” (Westly, 

supra, 125 Cal.App.4th at p. 912.)

We have provided the parties with adequate notice by inviting and receiving 

preliminary opposition from BDE. “ ‘Having complied with the procedural prerequisites, 

we are authorized to issue a peremptory writ in the first instance.’ ” (Johnny W. v. 

Superior Court (2017) 9 Cal.App.5th 559, 568.)

DISPOSITION

Let a peremptory writ of mandate issue directing respondent superior court in 

Black Diamond Electric, Inc. v. Contractors State License Board (Super. Ct. Contra 

Costa County, No. C1702451), to vacate its order of February 14, 2018, denying 

petitioner’s motion for a protective order, and to enter a new and different order granting 

petitioner’s motion. To prevent further delays in the superior court proceedings, this 

decision shall be final as to this court five court days after its filing. (Cal. Rules of Court, 

rule 8.490(b)(2)(A).) The previously issued stay shall dissolve upon finality of this 

opinion.
Filed 5/9/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

CONTRACTORS’ STATE LICENSE 

BOARD,

Petitioner,

v.

THE SUPERIOR COURT OF CONTRA 

COSTA COUNTY,

Respondent;

BLACK DIAMOND ELECTRIC, INC.,

Real Party in Interest.

 A153684

 (Contra Costa County

 Super. Ct. No. C1702451)

ORDER CERTIFYING OPINION 

FOR PUBLICATION

NO CHANGE IN JUDGMENT

THE COURT:

The opinion in the above-entitled matter filed on April 26, 2018, was not certified 

for publication in the Official Reports. After the court’s review of a request under 

California Rules of Court, rule 8.1120, and good cause established under rule 8.1105, it is 

hereby ordered that the opinion should be published in the Official Reports. 

Dated:

___________________________

Humes, P. J.
2

Trial Court: Contra Costa County Superior Court

Trial Judge: Hon. Judith Craddick

Counsel: 

Xavier Becerra, Attorney General, Thomas S. Patterson, Assistant Attorney General, 

Anthony R. Hakl and John W. Killeen, Deputy Attorneys General for Petitioner. 

Birka-White Law Offices, David M. Birka-White and Mindy M. Wong for Real Party in 

Interest.