Hernandez v. Superior Court

• Decision Date: 29 September 2003
• Docket Number: No. B166103.,No. B163040.,B163040.,B166103.
• Citation: 4 Cal.Rptr.3d 883,112 Cal.App.4th 285
• Court: California Court of Appeals Court of Appeals
• Parties: Jose HERNANDEZ et al., Petitioners, v. The SUPERIOR COURT of the State of California, Respondent; Acheson Industries, Inc., et al., Real Parties in Interest.

4 Cal.Rptr.3d 883

112 Cal.App.4th 285

Jose HERNANDEZ et al., Petitioners, v. The SUPERIOR COURT of the State of California, Respondent Acheson Industries, Inc., et al., Real Parties in Interest.

No. B163040.

No. B166103.

Court of Appeal, Second District, Division 4.

September 29, 2003.

As Modified October 23, 2003.

Rehearing Denied October 27, 2003.

Raphael Metzger, Thomas Martin and Greg Coolidge, Long Beach, for Petitioners.

No appearance for Respondent.

Poole & Shaffery, John Shaffery, Los Angeles, and Darren M. Ballas, Los Angeles, for Real Parties in Interest Industrial Furnace & Refractory, Inc.

Walsworth, Franklin, Bevins & McCall, Deidre F. Cohen, Christian J. Ziegler, Los Angeles, for Real Parties in Interest KB Alloys, Inc., Pacific Abrasives Supply Company and Standard Abrasives, Inc.

George H. Ellis, Los Angeles, for Real Party in Interest Milwaukee Electric Tool Corporation.

Johnson, Cebula & Rygh, Mike Vo and John M. Rygh, Long Beach, for Real Parties in Interest Carbide Saw & Tool Company and Spede Tool Manufacturing Company.

Radcliff, Dongell & Lawrence and Jason M. Booth, Los Angeles, for Real Party in Interest TST, Inc.

Parker, Milliken, Clark, O'Hara & Samuelian, Stephen T. Holzer and Darren Marcus Salvin for Real Parties in Interest Empire Castings Incorporated.

HASTINGS, J.

BACKGROUND

Plaintiffs in a wrongful death action have filed two petitions for writs of mandate to review several discovery orders: an order granting a motion to compel discovery, entered on October 23, 2002, and an order requiring the disclosure of petitioners' medical experts and other matters, entered on March 27, 2003.

This action was filed in 2001 against approximately 80 defendants, many of whom have been dismissed from the action, but with more than 40 remaining at the time the two petitions were filed. The case was provisionally deemed complex, and assigned to Department 24 of the Los Angeles County Superior Court for all purposes.¹

Petitioners filed their first petition on November 22, 2002, and the second on April 4, 2003. We consolidated the two petitions, stayed the disputed discovery orders, and issued an order to show cause, with written returns to be filed no later than June 27, 2003. On June 27, 2003, real parties in interest, KB Alloys, Inc., Pacific Abrasives Supply Company, and Standard Abrasives, Inc., filed a single joint return, admitting or denying the allegations of the second petition only.² The return filed by real party in interest, Industrial Furnace & Refractory, Inc., includes a demurrer to the second petition, but no answer to the allegations of either petition. All factual allegations of the first petition are therefore deemed admitted.³

KB's return admits all the allegations of the second petition that relate to the relevant procedural history of the discovery dispute, but deny all argument and conclusions, which we shall disregard in our summary. Thus, for example, instead of summarizing petitioners' allegations with regard to the effect of the various documents described in the petition, we shall take our summary from those documents that have been reproduced in petitioners' appendices.

DISCUSSION

1. The First Petition: Privilege Dispute

On January 25, 2002, all defendants jointly propounded their first set of special interrogatories on petitioners. After petitioners served their responses, several defendants brought a motion to compel further responses to the interrogatories.⁴ On June 26, 2002, the trial court granted the motion and issued a written order setting forth certain findings and ordering further responses to the interrogatories, among other things.

On July 17, 2002, after petitioners provided further answers to the interrogatories, the trial court issued a case management order with regard to scheduling remaining discovery.⁵ The court ordered that defendants be permitted to serve supplemental interrogatories and document requests "to be directed squarely to the issues, and to be responded to promptly and fully and without evasion." Further, the court ordered that privilege objections, "where applicable, are to be accompanied by privilege logs."⁶

On August 23, 2002, defendant Milwaukee Electric Tool Corporation filed a motion to compel further answers to the first set of special interrogatories, charging that petitioners had identified documents merely by referring to pleadings and discovery in general terms, and by invoking various privileges, without providing the factual bases for them. Petitioners opposed the motion, and it was set for hearing on October 23, 2002.

In the meantime, another defendant, P.W. Gillibrand, obtained an order granting its motion for further responses to two of the interrogatories. Gillibrand had complained, among other things, of petitioners' refusal to identify documents and basing the refusal upon an assertion of privilege, without providing any facts establishing grounds for assertion of the privilege. On October 3, 2002, the trial court granted Gillibrand's motion, found that petitioners had waived the attorney-client and work product privileges due to their failure to provide a "privilege log," and overruled any objection to the disputed interrogatories based upon privilege.

On October 22, 2002, the day before hearing on Milwaukee's motion to compel, petitioners' attorneys faxed to Milwaukee's attorney a document entitled, "Privilege Log ... re Milwaukee's Special Interrogatories (Set 1) and Inspection Demands." The log describes 26 documents, states the date each was prepared and the privilege invoked for each, and provides a Bates-stamp page number.

At hearing on Milwaukee's motion to compel, the trial court found, among other things, that petitioners had inserted the nearly identical list of generally described categories of documents and a "boilerplate enumeration of objections," in response to nearly every request to identify documents, without tailoring them to each particular interrogatory. The court concluded that the boilerplate responses were given without much consideration to their relevance to each interrogatory or any particular defendant, and were the equivalent of a response such as, "see all documents obtained in discovery."

The motion was granted. The minutes summarize the ruling as follows: "The claim of privilege in response to request to identify documents, other than privilege for confidential marital communications, is not sustained and other privilege is deemed waived. [¶] Further responses are to be given as more fully stated on the record. The request for sanctions is denied."

First, with regard to the order of October 23, 2002, petitioners contend that the trial court had no power to deem their attorney-client and work product privileges waived, due to their failure to serve a "privilege log" with their responses to interrogatories. We issued an order to show cause and stayed the order, because interlocutory review by writ may be the only adequate remedy where a petition alleges that an order compelling discovery violates a privilege or the attorney work product rule. (See Roberts v. Superior Court (1973) 9 Cal.3d 330, 336, 107 Cal.Rptr. 309, 508 P.2d 309, disapproved on another point in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3, 103 Cal.Rptr.2d 23, 15 P.3d 243 [privilege]; BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1249-1250, 245 Cal.Rptr. 682 [work product].)

Petitioners contend that under "black letter law," a "privilege log" is required only when a party objects to a demand for inspection of a document based upon a claim of privilege. Such "black letter law," petitioners contend, may be found in Code of Civil Procedure section 2031, dealing with inspection demands, but not in section 2030, which deals with interrogatories.⁷ In fact, the expression, "privilege log," does not appear in section 2031 or anywhere else in the Code of Civil Procedure, whether in black letters or any other color. The expression is jargon, commonly used by courts and attorneys to express the requirements of subdivision (g)(3) of section 2031.⁸ (See e.g., Kaiser Foundation Hospitals v. Superior Court (1998) 66 Cal.App.4th 1217, 1223, 78 Cal.Rptr.2d 543; Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 269, 69 Cal.Rptr.2d 112.)

The purpose of a "privilege log" is to provide a specific factual description of documents in aid of substantiating a claim of privilege in connection with a request for document production. (See Korea Data Systems Co. v. Superior Court (1997) 51 Cal.App.4th 1513, 1516-1517, 59 Cal.Rptr.2d 925.) The purpose of providing a specific factual description of documents is to permit a judicial evaluation of the claim of privilege. (Blue Ridge Ins. Co. v. Superior Court (1988) 202 Cal.App.3d 339, 346, 248 Cal.Rptr. 346; Motown Record Corp. v. Superior Court (1984) 155 Cal.App.3d 482, 492, 202 Cal.Rptr. 227.)

Petitioners contend that the trial court had no power to impose the same requirements upon a claim of privilege in response to interrogatories. Petitioners' argument appears to be that since section 2031 requires a "privilege log," but section 2030 does not, a "privilege log" is neither permitted nor required by statute when answering interrogatories, and the trial court's own rule of procedure must, therefore, be preempted pursuant to rule 981.1 of the California Rules of Court.⁹ Further, petitioners contend, it conflicts with the court's own case management order, which requires a "privilege log" only for documents withheld from inspection under section 2031. We agree, in part.

Section 2030 provides in subdivision (f): "The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by (1) an answer containing the information sought to be discovered, (2) an exercise of the party's option to produce writings, or (3) an objection to the particular interrogatory." Subdi...