Dowden v. Superior Court, G024096

• Decision Date: 28 June 1999
• Docket Number: No. G024096,G024096
• Citation: 73 Cal.App.4th 126,86 Cal.Rptr.2d 180
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 5164, 1999 Daily Journal D.A.R. 6627 Douglas William DOWDEN, Petitioner, v. The SUPERIOR COURT of California, County of Orange, Respondent; Daniel Drew Dowden, Real Party In Interest.

Page 180

86 Cal.Rptr.2d 180

73 Cal.App.4th 126, 99 Cal. Daily Op. Serv. 5164,

1999 Daily Journal D.A.R. 6627

Douglas William DOWDEN, Petitioner, v. The SUPERIOR COURT of California, County of Orange, Respondent Daniel Drew Dowden, Real Party In Interest.

No. G024096.

Court of Appeal, Fourth District, Division 3, California.

June 28, 1999.

Cummings & Kemp, Thomas B. Cummings, Riverside, Mark L. Kincaid, Long Beach, and Everett L. Skillman, Santa Ana, for Petitioner.

Richard J. Koppel, Ventura, for Real Party in Interest.

O P I N I O N

RYLAARSDAM, J.

Petitioner filed a petition for writ of mandate seeking relief from an order granting a motion to compel production of a diary. Petitioner, who is an in propria persona litigant, claims a work product privilege under Code of Civil Procedure section 2018. (All further statutory references are to the Code of Civil Procedure.) Without determining whether his diary is in fact work product, we conclude that litigants appearing in propria persona may assert section 2018's work product privilege. We grant the petition and remand the matter to the trial court to conduct an in camera review of the diary to determine whether it contains matter which is privileged under section 2018.

FACTS

Real party in interest, Daniel Dowden, plaintiff in the underlying action, and petitioner Douglas Dowden, defendant, are brothers. Following their mother's death they allegedly agreed to divide certain property held in joint tenancy. Real party in interest claimed petitioner breached the agreement and sued him for property damage and breach of contract. Petitioner cross-complained for conversion and breach of contract. Petitioner is represented by attorneys in his capacity as a defendant, but appears in propria persona as a cross-complainant. Petitioner's attorney allegedly advised him to keep a diary in anticipation of litigating his claims against real party in interest.

Real party in interest filed a motion to compel production of the diary. Petitioner opposed the motion, arguing the diary was entitled to a work product privilege under section 2018. The dispute was submitted to a referee. The referee recommended compelling production of the diary because he interpreted section 2018's privilege to be available only to attorneys. The trial court adopted the referee's recommendation and granted real party in interest's motion.

DISCUSSION

The Use of the Word "Attorney" in Section 2018 is Ambiguous

The construction and interpretation of a statute is a question of law, which the Court of Appeal considers de novo. (County of Los Angeles v. Superior Court (1993) 18 Cal.App.4th 588, 594, 22 Cal.Rptr.2d 409.)

Section 2018 provides a privilege for matter prepared in anticipation of litigation. (See Fellows v. Superior Court (1980) 108 Cal.App.3d 55, 62, 166 Cal.Rptr. 274.) It reads, in part, "[i]t is the policy of this state to (1) preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases; and (2) to prevent attorneys from taking undue advantage of their adversary's industry and efforts." (§ 2018, subd. (a).) Therefore, "[a]ny writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories shall not be discoverable under any circumstances." (§ 2018, subd. (c).) Other types of work product are not discoverable unless "denial of discovery will unfairly prejudice the party seeking discovery ...." (§ 2018, subd. (b).)

When interpreting a statute, "we turn first to the statutory language, since the words the Legislature chose are the best indicators of its intent." (Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal.4th 821, 826, 25 Cal.Rptr.2d 148, 863 P.2d 218.) "When statutory language is clear and unambiguous, there is no need for construction...." (People v. Overstreet (1986) 42 Cal.3d 891, 895-896, 231 Cal.Rptr. 213, 726 P.2d 1288; see also Delaney v. Superior Court (1990) 50 Cal.3d 785, 798, 268 Cal.Rptr. 753, 789 P.2d 934.) However, if the language is ambiguous, we "may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history. [Citation.]" (People v. Coronado (1995) 12 Cal.4th 145, 151, 48 Cal.Rptr.2d 77, 906 P.2d 1232.)

Real party in interest contends the plain language of section 2018 establishes the privilege applies only to licensed attorneys, and therefore, petitioner is not entitled to the work product privilege. However, section 2018 does not define the term attorney. In ordinary parlance, the term "attorney" means "attorney at law," or "lawyer." (Black's Law Dict. (5th ed.1979) pp. 117-118.) At least one other jurisdiction includes in the definition of "attorney" any "party prosecuting or defending an action in person." (See, e.g. N.Y. CPLR § 105.)

On its face the statute may not seem ambiguous, but an ambiguity arises because other provisions of the Code of Civil Procedure and Rules of Court which require that "attorneys" follow certain procedures, apply to litigants appearing in propria persona as well. (See, e.g. § 1952.2; Cal. Rules of Court, rules 15(b), 217 & 219; Cal. Standards Jud. Admin., § 9.) Moreover, "[a] lay person, ... who exercises the privilege of trying his own case must expect and receive the same treatment as if represented by an attorney--no different, no better, no worse." (Taylor v. Bell (1971) 21 Cal.App.3d 1002, 1009, 98 Cal.Rptr. 855, citing Doran v. Dreyer (1956) 143 Cal.App.2d 289, 290, 299 P.2d 661; see also Williams v. Pacific Mutual Life Ins. Co. (1986) 186 Cal.App.3d 941, 944, 231 Cal.Rptr. 234.) Because the term "attorney" has been applied to other statutes without distinguishing between attorneys and litigants appearing in propria persona, the term is ambiguous, and it is necessary to look at section 2018's legislative history to determine whether the Legislature intended to limit the work product privilege to attorneys.

Section 2018's Legislative History Supports Applying the Privilege to Unrepresented Litigants

The United States Supreme Court first recognized a privilege for work product in Hickman v. Taylor (1947) 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451. After Hickman, and prior to the adoption of section 2016, 2018's predecessor, California courts struggled to develop a work product doctrine. In Holm v. Superior Court (1954) 42 Cal.2d 500, 267 P.2d 1025, California's Supreme Court created a privilege similar to the federal work product privilege, but based on the attorney-client privilege.

In Holm, the court held photographs and an accident report prepared for counsel's assistance in defending an action were within the attorney-client privilege. (Holm v. Superior Court, supra, 42 Cal.2d at p. 510, 267 P.2d 1025.) The practical effect of Holm was to protect certain material now considered work product as if it were an attorney-client communication. For example, in Heffron v. Los Angeles Transit Lines (1959) 170 Cal.App.2d 709, 339 P.2d 567, a statement by defendant's employee concerning an accident was held to be privileged because it had been prepared as part of a procedure followed in anticipation of litigation. The court, in deciding the statement was privileged, noted the "[defendant's] dominant purpose in obtaining and preserving the driver's statement was that it might be transmitted as a communication to the attorneys designated by its insurance carrier for use in the performance of professional responsibilities in defending [defendant] against a potential claim. [Citations.] The driver's statement evidently set forth ' ... his version of the accident and thus clearly is at the very heart of the attorney client privilege.' [Citations.]" (Id. at pp. 717-718, 339 P.2d 567.)

At about the same time, the concept of a separate privilege for work product was also beginning to take form in California's courts. In Trade Center Properties, Inc. v. Superior Court (1960) 185 Cal.App.2d 409, 8 Cal.Rptr. 345, the court recognized that policy considerations separate from those of the attorney-client privilege existed for protecting work product. In that case, the plaintiff sought to depose defendant's attorney and sought production of files the attorney had compiled in preparation for litigation. The court held the attorney could not be deposed and the files were not discoverable. In reaching its decision, the court rejected defendant's argument that the files fell within the attorney-client privilege. The court stated, "[n]o conceivable extension of the broadest view of the language of prediscovery cases relied upon by real parties in interest [citation] can extend the attorney-client privilege to the communications of the independent nonparty witness here involved. [p] However, sound reasons of policy support the trial court's determination.... [p] What petitioner here seeks is the right to take the deposition of his adversary's attorney upon matters pertaining to the latter's preparation for trial. Whether to protect the work product of that attorney or to restrict the picking of his brains, the court clearly should bar such a proceeding except upon a showing of extremely good cause." (Id. at p. 411, 8 Cal.Rptr. 345.) Despite its decision, the court noted that it was not adopting the entirety of the Hickman rule. (Ibid.)

While the concept of work product was being developed by the courts, California's Legislature was also preparing to enact the Discovery Act. Under that proposed legislation, certain work product would be absolutely protected based on the attorney-client privilege. (Stats.1957, ch.1904, art. 3, pp. 3322-3323; see Holm v. Superior Court, supra, 42 Cal.2d at pp. 509-510, 267 P.2d 1025; see also Pruitt, Lawyers' Work Product (1962) 37 State Bar J. 228, 235-236.) This initial concept differed from the federal rules which...