Tentative Ruling

Judge Pauline Maxwell
Department 6 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Cortland T. Day vs City of Carpinteria
Case No: 18CV05119
Hearing Date: Wed Jan 15, 2020 9:30

Nature of Proceedings: (2) Motions to Compel

TENTATIVE RULINGS: Both motions are granted, as outlined below. Further verified responses to each interrogatory and, in the case of the SCE motion, a privilege log establishing the claimed attorney work product protection over each and every communication responsive to Special Interrogatory Nos. 53-55, shall be provided within 10 days of the hearing on this motion, or at such other time as the Court may specify at the hearing on this motion.

Background: On October 18, 2018, plaintiff Cortland T. Day, individually and as personal representative of the estate of Jana Whelan, his spouse, filed a complaint for dangerous condition of public property and negligence against defendants City of Carpinteria, Southern California Edison Company (SCE), Southern California Gas Company (SCG), and Lyles Utility Construction, LLC (Lyles). Plaintiff alleges:

On October 22, 2017, at approximately 12:46 p.m., Whelan was riding her bicycle eastbound on Carpinteria Avenue, in the Class II bicycle lane, just east of Reynolds Avenue in Carpinteria. (Complaint, ¶ 12.) At that time and place there existed an irregular, uneven, and dangerous depression causing a vertical change in elevation of the roadway surface of the roadway and a sharp difference between the roadway segments within the bicycle lane, which extended across the bicycle lane. (Complaint, ¶ 13.) Whelan came upon the dangerous depression, lost control of her bicycle, fell to the ground and suffered injuries resulting in her death on November 4. (Complaint, ¶ 14.) Defendants had performed utility maintenance work involving trenching on the roadway. (Complaint, ¶ 15.) The depression was caused by a defective L-shaped asphalt patch. (Complaint, ¶ 16.) The defective patch was of significant and unsafe height deviation along the edges of the patch from the rest of the roadway. (Complaint, ¶ 27.) Also, there were jagged and loose gravel, gaps, separations, and uneven pavement/asphalt which caused a hazard and exposed bicyclists to harm. (Ibid.)

On March 11, 2019, plaintiff propounded special interrogatories upon both the City of Carpinteria and SCE. After multiple extensions of time, each defendant served responses on July 26, 2019. Plaintiff met and conferred with respect to the responses, seeking one further response from defendant City, and six further responses from SCE. In spite of multiple additional extensions of time, the last of which expired on December 3, 2019, no further responses were received from either defendant. Plaintiff filed these motions to compel further responses on December 16, 2019.

ANALYSIS: Motion to compel further response from City of Carpinteria The motion is granted. City of Carpinteria shall provide a further verified response to Special Interrogatory No. 39 within 10 days of the date of this hearing, or at such other time as the Court may specify at the hearing on this motion.

No. 39 asked the City of Carpinteria to identify all agreements that existed in connection with the permit it issued under which the Cold Patch was applied on the Subject Roadway. City responded with objections, and the statement that “The CITY did not inspect the application of the COLD PATCH prior to October 22, 2017.”

Plaintiff sought a further response to the request, noting that the City’s answer was nonresponsive to the question which had been asked. In opposing the motion, Carpinteria asserts that its response “indicates that no inspection took place and therefore, no such documents were generated at the time of the application of the cold patch,” and that “because no permit was issued specifically for the cold patch, the CITY’s response that no inspection took place because no permit was issued also means that no documents were generated within the call of the question.”

City’s argument in opposition to the motion effectively acts to establish the insufficiency and non-responsiveness of its interrogatory answer. Its response that it did not inspect application of the cold patch prior to 10/22/17 quite clearly bears absolutely no relationship to a request for identification of the agreements which existed in connection with a permit issued under which the cold patch was applied. Rather than simply acknowledging that it had erroneously responded to the interrogatory, City’s opposition to the motion quite unsuccessfully made an attempt to correlate the two. It then explained further that no permit had been issued specifically for the cold patch. That was not part of the interrogatory response, and in fact appears to the Court to be deceptive and evasive, in that the interrogatory seeks agreements that exist in connection with the permit it issued under which the cold patch was applied to the roadway. If the work that included the cold patch was conducted pursuant to any permit (and the SCE responses to discovery appear to identify a permit for the excavation work, in response to Special Interrogatory Nos. 19-23 propounded by plaintiff upon SCE), and if there are any agreements that exist in connection with that permit (or any other permit pursuant to which the cold patch work was performed), a verified response identifying all such agreements must be provided. If no such agreements exist, plaintiff is entitled to a verified response so stating.

City is ordered to provide a further verified responsive answer to Special Interrogatory No. 39, within 10 days of the date of this hearing.

Motion to compel further responses from SCE The motion is granted, and SCE is ordered to provide further verified responses to Special Interrogatory Nos. 12-14 and 53-55, as outlined below, within 10 days of the date of this hearing, or at such other time as the Court may specify at the hearing on this motion.

No. 12: Special Interrogatory No. 12 asked SCE to identify all documents that were generated in connection with the last inspection of the subject roadway prior to October 22, 2017. SCE objected that the request was vague and ambiguous, overly broad, and assumed facts, and without waiving the objections responded: “N/A.”

Plaintiff has moved to compel further response, asserting that “N/A” is an inadequate response to the interrogatory. Plaintiff further contended that the N/A response contradicted SCE’s response to No. 11, which asked for the identification of all persons who inspected the scene prior to the date of the incident on October 22, 2017, in response to which SCE had identified two of its employees. Plaintiff contends that if documents relating to the inspection exist, they must be identified, and if they do not, SCE should provide a verified response stating that no such documents exist.

In opposition to the motion, SCE asserted that its “N/A” response “indicates” that no documents were generated as to any inspection prior to October 12, 2017, and that the question was therefore properly answered, and it cannot be compelled to identify documents which do not exist.

The “N/A” response does not, as SCE contends, provide adequate response that no responsive documents exist. If that is in fact true, Plaintiff is entitled to a verified response expressly stating that no responsive documents exist. SCE is ordered to provide a further verified response to No. 12.

Nos. 13-14: Special Interrogatory Nos. 13 and 14 inquire when SCE first became aware of the cold patch (#13) and how it first became aware of the cold patch (#14). In response to No. 13, SCE first objected on various grounds, including attorney work product, and then stated that it had received a letter of representation from Heimberg Barr LLP on April 17, 2018, and that SCE Investigator Jose Moran had discussed the matter with Catherine Kim on April 27, 2918, and she informed him of the incident. In response to No. 14, SCE once again asserted objections, and then responded that it received the Santa Barbara County Sheriff’s Department Traffic Collision Report No. 17-14297 in May 2018.

Plaintiff moves to compel further responses to Nos. 13 and 14 because SCE’s responses are inconsistent. SCE opposes the motion, contending that the events occurred “relatively simultaneously,” and that both plaintiff’s counsel’s letter and the traffic report operated to put it on notice of the Cold Patch.

The interrogatories asked SCE when and how it first became aware of the cold patch, which the interrogatories expressly defined as “the ‘L’-shaped asphalt patch that existed within the designated bike lane on the SUBJECT ROADWAY on or about October 22, 2017. While various events may have occurred “relatively simultaneously,” and may have acted together to inform SCE of the nature of the incident as a whole, the questions clearly sought to inquire when (#13) and how (#14) SCE first became aware of the cold patch. The responses provided by SCE were contradictory and confusing.

The Court will therefore order SCE to provide further verified responses to Special Interrogatory Nos. 13 and 14.

Nos. 53-55: These interrogatories asked SCE to describe all oral or written communications it had with anyone regarding the incident (#53), to describe all oral or written communications it had with anyone regarding the subject roadway (#54), and to describe all oral or written communications it had with anyone regarding the cold patch (#55). “Incident,” “subject roadway,” and “cold patch” were all specially defined terms in the interrogatories. SCE responded solely by objection that the questions sought information that is protected from disclosure by the attorney work product privilege.

Plaintiff has moved to compel further responses to each of the interrogatories, contending that the interrogatories seek information pertaining to the communications by SCE itself with other persons and/or entities, and not communications by defense counsel. Plaintiff asserts that even if some responsive information may fall within the privilege, there should be a substantive response to the interrogatory. Further, if there were no such communications, plaintiff contends he is entitled to a substantive response. Plaintiff argues that the existence of a privileged document is, itself, not privileged. Further, the only objection asserted is work product, and non-derivative material such as the identity and location of physical evidence or witnesses does not constitute work product, and only derivative or interpretive material so qualifies, citing Coito v. Superior Court (2012) 54 Cal.4th 480, 488-489. Additionally, SCE provided substantive responses and produced documents to requests for correspondence, e-mails, writings, letters or other communications, related to the same subjects discussed here, under Request Nos. 16-23, and its failure to provide any response to Nos. 53-55 is at odds with any notion that no responsive communication took place, or that all such communications are protected work product. Those responses make clear that responsive communications took place which are not privileged.

SCE opposes the motion, contending that the interrogatories do not seek SCE’s knowledge, but rather the theories formed by its attorneys, and the facts, witnesses, and documents which support that attorney input, the revelation of which would disclose counsel’s preparation and thoughts. It argues that under California law, material complied by an attorney in preparation of the case is protected work product, citing Mack v. Superior Court (1968) 259 Cal.App.2d 7, 10. California law creates a qualified privilege against discovery of an attorney’s general work product, and an absolute privilege against discovery of the attorney’s impressions, conclusions, opinions, or legal theories, citing In re Jeanette H. (1990) 225 Cal.App.3d 25, 31. SCE concludes that the broadly worded interrogatories seek divulgence of attorney work product, and urges the court to sustain its objection.

In reply, plaintiff asserts that the opposition’s recitation of the law of work product does not support SCE’s failure to provide substantive responses, since he is not seeking communications with counsel. Plaintiff further asserts that considering SCE’s role in securing a permit from the City of Carpinteria and contracting with Lyle Utility Construction for the work on the roadway, it strains credulity to suggest that no non-privileged documents exist.

In failing to identify any communications of any sort, and in solely responding by asserting the attorney work product protection, SCE has essentially represented to the plaintiff and to the Court that each and every communication anyone at SCE ever had with respect to the incident, the roadway, or the cold patch (as those terms are defined in the interrogatories) falls within attorney work product. To say that the Court is highly skeptical of that contention would be an enormous understatement. In fact, the Court cannot conceive of how SCE’s contention could possibly be true.

Pursuant to Code of Civil Procedure section 2018.030 (not Section 2018, as SCE’s counsel represents, which has not existed since 2018.030 was enacted in 2004):

(a) A writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.

(b) The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.

The attorney work product protection can apply to information other than that created by or directly involving the party’s attorney, and the work product of an attorney’s employees or agents (investigators, researchers, consultants, etc.) is treated as the work product of the attorney. (See Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 636, 647-648, disapproved on other grounds in Coito v. Superior Court, supra, 54 Cal.4th at p. 499.) Consequently, communications protected by the attorney work product protection can include those involving persons other than SCE’s counsel.

A party resisting discovery based upon the absolute work product protection must make a preliminary showing that disclosure would reveal the attorney’s “impressions, conclusions, opinions, or legal research or theories.” Upon an adequate showing, the court determines, by means of an in camera review if necessary, whether some or all of the material is entitled to absolute protection. (Coito v. Superior Court (2012) 54 Cal.4th 480, 499-500.)

SCE’s opposition is not accompanied by a declaration of counsel, and contains only legal arguments. It therefore fails to make any showing that disclosure of any of the written communications would necessarily reflect counsel’s impressions, conclusions, opinions, or legal research of theories, and be subject to the absolute work product protection of Section 2018.030(a). Nor has any evidence or information been provided that would allow the Court to ascertain whether any of the information regarding the communications at issue might be protected by the qualified protection of Section 2018.030(b).

The Court would be entirely justified in wholly overruling SCE’s assertion of the attorney work product protection, given its complete failure to provide any information to support the existence of the protection. However, rather than doing so at this point in time, the Court will instead order SCE to provide a Privilege Log for each and every communication responsive to Special Interrogatory Nos. 53-55 for which attorney work product protection is claimed, containing the date of each communication, the identity of the participants in each such communication (i.e., the sender(s) and recipient(s) of any written communications, and the identity of each participant in any oral communication), and sufficient factual information to allow the Court and plaintiff to evaluate the merits of SCE’s assertion of the attorney work product protection over that communication. A finding that SCE has provided insufficient factual information to allow evaluation of the propriety of the work product protection claim for any particular communication identified in the log, will likely result in a judicial determination that the protection has not been established for the communication at issue, and that a further substantive response to the interrogatories will be required.

To the extent that SCE, in preparing its privilege log, concludes that there are any communications responsive to Nos. 53-55 to which the attorney work product protection does not apply, it shall provide further verified responses to Nos. 53-55 with respect to those communications.