Southern Cal. Gas Co. v. Superior Court
Filed 7/16/12 Southern Cal. Gas Co.
v. Superior Court CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION FIVE
SOUTHERN CALIFORNIA GAS COMPANY,
Petitioner,
v.
THE SUPERIOR COURT
OF LOS ANGELES
COUNTY,
Respondent;
ALLSTATE INSURANCE COMPANY et al.,
Real
Parties in Interest.
No. B240674
(L.A.
Super. Ct. No. BC442504)
ORIGINAL
PROCEEDINGS; petition for writ of mandate. John Shepard Wiley, Jr., Judge. Writ granted.
Sheppard,
Mullin, Richter & Hampton, Steven O. Kramer, Jonathan D. Moss; Marlin E.
Howes; and John A. Yacovelle for Petitioner.
Berger
Kahn, Craig Simon; Greines, Martin, Stein & Richland, Robert A. Olson and
Gary J. Wax for Real Parties in Interest.
No
appearance for Respondent.
_________________________________
Southern
California Gas Company (Southern California Gas) petitions for a writ of
mandate directing the superior court to vacate its order requiring further
responses to five requests for admission and, impliedly, an interrogatory
requesting information supporting anything other than an unqualified admission
of each request. Southern
California Gas contends the order would require it to reveal
material protected by the work product doctrine. We grant the petition.
This
case involves what is known at the Sesnon fire of October 2008, which burned
the Porter Ranch area of Los Angeles, California. According to the Los Angeles County Fire
Department, the fire was caused by an electrical line, owned by Southern
California Gas, which fell during high winds.
After
they had paid claims relating to fire loses, numerous insurers filed a
subrogation action against Southern California Gas. During discovery, the insurers propounded
requests for admission. Those requests
were accompanied by California’s
Form Interrogatory No. 17.1, which requires the responding party to identify
all facts, witnesses, and documents that support anything other than an
unqualified admission made in response to the requests for admission.
At
issue in this petition are five of the requests for admission. They are as follows.
No. 12. “Admit that in a routine preventative
maintenance program one looks at insulators with binoculars to ensure that the
conductor’s insulator remains intact.â€
No. 17. “Admit that regular inspection of the power
line, [sic] both visually and using
infra-red (heat) scanning devices would have discovered any fatigue points
before a failure occurred.â€
No. 57. “Admit that the Sesnon Fire was caused when a
CONDUCTOR strung between H-Frames 643-644 and 670-671, [sic] broke and fell to the ground on October 13, 2008.â€
No. 88. “Admit that the Sesnon fire was caused by an
electrical conductor, owned and operated by SCGC, falling to the ground.â€
No. 102. “Admit that YOUR conduct was a substantial cause
to [sic] the ignition of the Sesnon
Fire.â€
Southern
California Gas objected to those requests on various grounds and in three
separate attempts to respond. The
question at issue in this proceeding became distilled during the course of meet
and confer, as well as consideration of discovery propounded by other parties
to the litigation: whether Southern
California Gas has to respond to discovery requests requiring it to confer with
its non-designated expert witnesses, who may or may not be designated when the
time comes, in order to answer. That
objection sounds in the work product protection as information from litigation
consultants is part of an attorney’s investigation of the case.
The
issue first came before respondent court on an informal basis. At the request of the parties, the court
agreed to provide its take on whether Southern California Gas could assert the
work product protection when a request for admission would require it to
consult with its non-designated experts to provide an answer. The parties e-mailed a joint brief to the
court, indicating their positions. The
court e-mailed an informal ruling and also took argument on the issue at a
scheduled status conference. The court
indicated that it was appropriate for a party to admit or deny a fact or
contention addressed by a request for admission even if it needed to consult
with an expert witness in order to respond, citing Chodos v. Superior Court (1963) 215 Cal.App.2d 318, 323.
The
informal procedure did not resolve the issue.
Accordingly, the insurers filed a motion to compel further answers to
the requests for admission and the accompanying interrogatory. Southern California Gas made a cross-motion
for protective order. After taking
briefing and argument, respondent court reiterated its informal
conclusion. On March 13, 2012, the court
granted the insurers’ motion as to numerous requests for admission, including
the five at issue here, and compelled Southern California Gas to provide further
responses. Though no mention was made of
the accompanying interrogatory, the parties agree that the implication of the
order was to also require further responses to the interrogatory. The court presumably denied the motion for
protective order as well, though no order to that effect was actually
entered. This petition followed,
challenging the court’s ruling as to the five requests for admission listed
above and the implied finding that the interrogatory also had to be answered
without assertion of the work product protection.
DISCUSSION
The California Code of Civil
Procedure explicitly permits assertion of the work product protection as a
response to a request for admission.
(Code Civ. Proc., §§ 2033.210, subd. (b); 2033.230, subd. (b).) However, respondent court did not address the
merits of that objection with regard to the five requests for admission at
issue here. Instead, the court issued a
broad directive that the protection could not be asserted, reiterating its
informal estimation that the objection could not be properly stated. It is true that requests for admission may
ask a party to admit the truth of specified fact, opinion relating to fact, or
application of law to fact. (Code Civ.
Proc., § 2033.010.) But it is not clear
that the court gave due consideration to the particular requests at issue
here. The court made no attempt to
consider the propriety of assertion of the work product protection in the
context of each request. The court did not
attempt to determine just what material was supposedly protected and whether
that material was truly work product.
Nor was there consideration of whether any work product protection was
overcome because to allow it would be prejudicial to the insurers or would work
an injustice. (Code Civ. Proc.,
§ 2018.030, subd. (b); see Coito v.
Superior Court (June 25, 2012, S181712) __ Cal.4th __ [2012 Cal. Lexis
5823, *42-*43]; National Steel Products
v. Superior Court (1984) 164 Cal.App.3d 476, 487-492.) The court simply brushed aside the specifics
in favor of the general proposition that a party must make a good faith effort
to respond to discovery. (
the express terms of the Code of Civil Procedure.
More
importantly from the work product protection standpoint, respondent court’s
order did not address the interrogatory that accompanied the requests for
admission, though the motion to compel sought further responses to the
interrogatory as well. The order left
the parties, and this court, to imply that further responses to the
interrogatory were required. However,
the interrogatory significantly expanded the scope of the discovery being
sought by the requests for admission. No
longer were the insurers only seeking a statement of Southern California Gas’s
position on various issues. The
interrogatory requires identification of every fact supporting anything other
than an unqualified admission, which would include any opinion a litigation
consultant has rendered. The
interrogatory also requires the name and contact information of every witness
with knowledge of those facts.
Similarly, every document or tangible thing that supports anything other
than an unqualified admission must be identified, its location pinpointed, and
the contact information for its custodian reported.
Cases
have held that consultants working for an attorney produce work product up to
the point that they are designated as trial experts. (Williamson
v. Superior Court (1978) 21 Cal.3d 829, 834; Scotsman Mfg. Co. v. Superior Court (1966) 242 Cal.App.2d 527, 529,
531.) Their opinions, and even
identities, may be withheld as protected information. (Schreiber
v. Estate of Kiser (1999) 22 Cal.4th 31, 37; Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 297.) To compel a further response to an
interrogatory that would require identification of non-designated experts, a
statement as to whether they prepared reports, and potentially the content of
their opinions, is improper without a thorough evaluation of the merits of any
work product protection that has been asserted.
protection will apply to each and every piece of requested information, that
appropriate limiting orders would not extend adequate protection, or that an
asserted work product protection could not be overcome in the context of this
case. Respondent court must undertake an
appropriate evaluation of the discovery requests, the responses, and objections
and determine whether the work product protection applies in whole or in
part. (See Coito v. Superior Court, supra, ___ Cal.4th at p.___ [2012 Cal.
Lexis 5823 at pp. *42-*43].)
This
court takes no position on the merits of Southern California Gas’s assertion of
the work product protection. The fact
that Southern California Gas claims to have swept its entire investigation
behind its counsel’s defense of the litigation is disquieting, as is the claim
that the investigation is still ongoing almost four years after the fire. Additionally, the record suggests that
independent investigations may have been performed outside of defense counsel’s
preparation, and those investigations might have supported more thorough
responses to the discovery requests at issue.
Such equities are for respondent court to consider. (Code Civ. Proc., § 2018.030, subd.
(b).) The point is that it must actually
do so.
DISPOSITION
The petition for writ of mandate is
granted and a writ of mandate hereby issues.
Respondent court is directed to set a hearing with regard to the five requests
for admission at issue in the petition and the accompanying interrogatory to
again consider the motion to compel further responses. The court must consider the asserted work
product protection on the merits, determine whether it is properly asserted in
whole or in part to each subject request for admission and the interrogatory,
reviewing the allegedly protected information in camera if necessary, and if
there is a work product protection whether it is overcome in the circumstances
of this case. The court is free to
consider sanctions awards as appropriate.
This opinion shall become final 10 days after it is filed. (Cal. Rules of Court, rule 8.490(b)(3).) Each party is to bear its own costs in this
proceeding.
KRIEGLER,
J.
I concur:
TURNER,
P. J.
MOSK, J., Concurring
I
concur.
I
agree that the trial court must determine if the work product doctrine can be
invoked with respect to the interrogatories and if so whether it should apply
in this case.
As
to the requests for admissions, I do not believe that in this case the doctrine
properly can be asserted. That is not to
say that the work product doctrine may never be asserted in response to a
request for admission. The statute says
it can. That means that if a request for
admission requests the party to admit or deny that an undesignated expert has
come to a certain conclusion, such a request could legitimately trigger a
work-product objection. But if the
request for an admission requests a party to admit or deny a fact or conclusion
that might require the party to consult an expert or involve an undesignated
expert’s opinion, that is not a proper basis for a work-product objection. In this case, it is clear that petitioner has
information, apart from any expert’s report, from which it can respond to the
requests for admission.
In
Hogan and Weber, California Civil Discovery (2d ed. 2005) § 9.7,
p. 9-15, the authors made the point that I espouse in connection with a
privilege. They state, “Privileges for
confidential communications, however, protect only the communications
themselves. They do not preclude
requests tailored to secure an admission of the facts that were the subject of
the confidential communication. Thus, a
request that a party admit telling an
attorney that he or she ran a red light is objectionable. A request that the party admit that
fact without revealing any confidential communication by which the party
learned that fact.â€
Code
of Civil Procedure section 2030.010, subdivision (b) provides that “[a]n
interrogatory is not objectionable because an answer to it . . . would be based
on information obtained or legal theories developed in anticipation of
litigation or in preparation for trial.â€
“A request that another party admit negligence presents the same issue.
. . . A work product objection to such
an admission request would fare no better than it would to a similar
interrogatory.†(2 Hogan and Weber,
13-20.)
Thus,
when this matter is remanded, I believe the trial court should reject the
objections to the requests for admission on the ground that the work-product
doctrine has no applicability to the specific requests in issue. In this regard, I do not believe the
majority’s position is inconsistent with mine.
A
party should not to be able to avoid admitting or denying factual matters that
go to the issues of liability. The trial
court should rule promptly on the discovery issues, as a trial date is looming.
MOSK,
J.
name="_ftn1" title="">[1] In their return, the insurers claim that Southern
California Gas did not adequately raise the work product protection as to many
of the requests for admission at issue in this proceeding. To the contrary, the record shows that the
objection was raised in the initial round of responses that were offered and
served as a limitation to subsequent responses.
Moreover, the argument was not raised in respondent court so cannot be
asserted here. Indeed, the insurers
forfeited any such argument by agreeing the work product protection was a
cognizable issue during the informal discussions with respondent court, and in
their formal motion.
name="_ftn2" title="">[2] The
record does not contain a copy of Southern California Gas’s initial responses
to the interrogatory. (Code Civ. Proc.,
§§ 2030.210, subd. (a), 2030.240, subd. (b).)
Thus, it is not clear whether the work product protection was asserted
there. It was, however, asserted in the
amended response. Thus, it appears the
issue was preserved. That is another
matter for respondent court to consider, though the nature of the briefing
before respondent court suggests the insurers recognized the objection was
properly advanced.
