Westly v. Superior Court

Opinion

McCONNELL, P. J.

FACTUAL AND PROCEDURAL BACKGROUND

Candace Cates, an enforcement officer with the California Division of Gambling Control, filed a taxpayer’s action for injunctive and declaratory relief against Controller Steve Westly, Attorney General Bill Lockyer and the Gambling Control Commission to require them to collect money which belongs to the state under the 1999 compacts mandating that certain revenue from tribal casinos be deposited into the state’s Special Distribution Fund. As Cates represents it, the complaint alleges the tribes are not paying the agreed-upon share and the Controller, Attorney General and Gaming Control Commissioners are not fulfilling their statutory duties to collect or require the tribes to account for the money.

The Controller and Attorney General moved for summary judgment on grounds that their offices are not responsible for collecting or accounting for contributions to the Special Distribution Fund because former Governor Davis delegated that responsibility to the California Gambling Control Commission by Executive Order No. D-66-03. After the motion was filed, Cates served deposition notices on Controller Westly, Attorney General Lockyer and others. The defense requested that Cates withdraw the notices for the Controller and Attorney General because they are top government officials and not subject to deposition. Cates refused. The Controller and Attorney General moved for a protective order that their depositions not be taken. The court issued a tentative ruling denying the motion, stating:

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“The issue which would be the subject of the depositions is whether the Attorney General and/or the Controller have a duty to collect funds from the Tribes owed to State under the Compacts, and if so, what steps have they taken, or not taken, to collect the funds. This is a material issue to this case.

“Mr. Lockyer has already submitted a declaration based upon his personal knowledge in support of the motion for summary judgment. No other source would be available to testify as to Mr. Lockyer’s personal knowledge.

“Mr. Korach of the Office of the State Controller has submitted his declaration based upon his personal knowledge about the duties of the State Controller. However, Mr. Korach is not the State Controller but rather one of the Controller’s chief officers. Mr. Korach has been in that position for only 1 year and 3 months. Mr. Westly would likely be in a better position to know the duties of the Office of the State Controller.