Mitchell v. Superior Court of Fresno County

Citation200 Cal.Rptr. 57,152 Cal.App.3d 1212
CourtCalifornia Court of Appeals
Decision Date21 February 1984
PartiesGary A. MITCHELL et al., Petitioners, v. The SUPERIOR COURT OF FRESNO COUNTY, Respondent. SHELL OIL COMPANY et al., Real Parties in Interest. Civ. F2997.

MARTIN, Associate Justice.

This matter comes before us on petitioners' petition for writ of mandate or prohibition, stay order and other appropriate relief from an order of respondent Superior Court to compel answers to deposition questions propounded by real parties in interest to petitioner Bette Mitchell which she declined to answer on instructions of counsel. This court issued an order to show cause why the relief prayed for in the petition should not be granted and issued a stay order pending determination of the petition.


Gary A. Mitchell and Bette Gae Mitchell are two of more than one hundred plaintiffs who reside near the Thompson-Hayward Chemical plant near Fresno, California. Petitioners and the other plaintiffs have filed lawsuits alleging contamination of the ground water in the vicinity of their homes. Petitioners allege the underground aquifer has been contaminated by the chemical dibromochloropropane (DBCP) which was used as an agricultural soil fumigant to kill microscopic, parasitic root worms known as nematodes. Petitioners sued a number of entities including the real parties in interest who manufactured, marketed and distributed DBCP and other involved chemicals.

Petitioners' second amended complaint contains seven causes of action for personal injuries and property damage, including intentional infliction of emotional distress. In petitioners' moving papers they assert the water contamination has "occasioned petitioners considerable emotional pain, anguish and distress, since they are aware that DBCP and the other chemicals are highly toxic and carcinogenic and can produce sterility and genetic damage."

Real party T.H. Agriculture and Nutrition Company, Inc., propounded a number of interrogatories to petitioner Bette Mitchell. The interrogatories and answers relevant to the instant case are selectively reprinted below:


"Have you ever read or heard any warnings of any kind about DBCP? If so, please state as to each such warning:

"a. Was it written or oral?

"b. The specific nature of the warning;

"c. The name and address of the person or organization who issued the warning;

"d. The date(s) you read or heard the warning(s);

"e. The name and address of the custodian of all written warnings."


"a. Written and oral.

"b. Physician recommended filter for well to avoid cancer in family members; Dept. of Health recommended same; media articles stating link between DBCP and cancer, infertility and defects.

"c. Robert W. Lusk, M.D., 6700 North First St., Suite 114, Fresno, Ca. 93710. Cal. Dept. of Health Services, 5545 E. Shields, Fresno, Ca. 93727. Fresno Bee articles. 'American Health', magazine article, July-August 1982 issue. Attorneys, covered by attorney-client privilege

"d. Approximately May of 1981 to present.

"e. Myself."



"Have you ever discussed with any person (other than with your attorney, in private) any warnings of any kind about possible dangers or side effects which could result from exposure to DBCP? If so, for each such discussion state:

"a. The location where the discussion occurred;

"b. The date of the discussion;

"c. The names and addresses of all persons present;

"d. The topics discussed;

"e. The contents of the warnings that were discussed;

"f. Whether the warning(s) was(were) written or oral;

"g. The name of the person or organization who issued the warning(s) and the date the warning(s) was(were) issued;

"h. If any notes or other written memoranda referring to the discussion exist, please identify and provide the name and address of the present custodian."


"36. Have discussed with friends, family, neighbors, physicians, attorneys; cannot recall dates on specific discussions."

On March 23-24 and May 2-3, 1983, the real parties took the deposition of petitioner Bette Gae Mitchell. During her deposition she stated that all the sources of information she had about DBCP contributed to her distress as evidenced by the following questions propounded to petitioner and her answers:

"Q. Is it true that all of the various sources of information that you have about DBCP have contributed in one way or another to the emotional distress that you suffer over the presence of DBCP in your water?

"MR. KRAMER: Which sources are you alluding to?

"THE WITNESS: You're talking about all the sources I've ever had?

"MR. CONANT: Right.

"A. Have they contributed to my emotional--you're talking about the letters I've gotten from the State and everything?

"Q. I'll include those.

"A. Well, yes, because it's all pertaining to me. And that's my only way of finding out anything, is reading it or seeing it or something."

During the course of that deposition, real parties sought information about the dates, times and other circumstances of Bette Mitchell's conferences with her attorneys. Real parties sought to elicit details about the nature and content of any warnings, information or documents she received from her attorneys regarding the health effects of DBCP. As to each of these 21 questions, petitioner's attorney invoked the attorney-client privilege and instructed Bette Mitchell not to answer.

On August 9, 1983, the Shell real parties moved respondent Superior Court for an order to compel answers to the questions which Bette Mitchell declined to answer on instructions of counsel. Real parties contended these questions were critical to the issues of emotional distress causation and were either not privileged from the outset, or alternatively, any privilege that existed had been waived. Respondent Superior Court granted real parties' motion to compel answers to each of the following questions:

"QUESTION NO. 1: What percentage of your--of the warnings that you have received have come from your attorneys?

"QUESTION NO. 2: When did you receive warnings from your attorneys with respect to the DBCP?

"QUESTION NO. 3: On how many different occasions did you receive warnings from your attorneys with respect to DBCP?

"QUESTION NO. 4: On those occasions when you received warnings from your attorneys with respect to DBCP, who was present?

"QUESTION NO. 5: When did you first meet Mr. Kramer here?

"QUESTION NO. 6: Is it true that your attorneys warned you about DBCP from May of 1981 to present, as is indicated in subpart D of your answers to interrogatories

"QUESTION NO. 7: Did your attorneys warn you orally or in writing concerning DBCP?

"QUESTION NO. 10: And what, in fact, did your attorneys tell you when they warned you about DBCP?

"QUESTION NO. 12: And is it true that the warnings that your attorneys gave you about DBCP contributed to that anxiety?

"QUESTION NO. 13: One of the sources of information you have about DBCP is information that you gained from your attorneys; is that correct?

"QUESTION NO. 15: Mrs. Mitchell, have you received any written information from your attorney about health effects of DBCP?

"QUESTION NO. 16: Have you received any written information from your attorney about the potential of DBCP to cause cancer in humans?

"QUESTION NO. 17: Have you received any written information from your attorney about the potential of DBCP to cause cancer in animals?

"QUESTION NO. 19: Have you received any other relevant information from your attorney about the potential for DBCP to cause cancer in humans?

"QUESTION NO. 20: Have you received any other relevant information from your attorneys about the human health effects of DBCP?"

The respondent Superior Court indicated questions one through seven, twelve and thirteen had nothing to do with the content of the communication and were not subject to the privilege in any event. The court further indicated questions 10, 16, 17, 19 and 20 had to do with consent.


Petitioners contend an extraordinary writ is the appropriate method for obtaining immediate review of the discovery order in the instant case.

In Lund v. Superior Court (1964) 61 Cal.2d 698, 709, 39 Cal.Rptr. 891, 394 P.2d 707, the Supreme Court, in dictum, stated the "better view is that an order made for the purposes of furthering discovery proceedings, or granting sanctions for refusal to make discovery, is not appealable." The Supreme Court has further held that "the prerogative writs should only be used in discovery matters to review questions of first impression that are of general importance to the trial courts and to the profession, and where general guidelines can be laid down for future cases." (Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 169, 84 Cal.Rptr. 718, 465 P.2d 854; quoting from Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185-186, fn. 4, 23 Cal.Rptr. 375, 373 P.2d 439.)

Pacific Tel. & Tel. Co. involved an objection to the trial court's grant of discovery on irrelevancy grounds. In footnote 11 of its opinion the Supreme Court made it clear an objection on irrelevancy grounds was of an entirely different nature than a challenge to the grant of discovery when the trial court's order allegedly violates a...

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  • Mitchell v. Superior Court, S.F. 24727
    • United States
    • United States State Supreme Court (California)
    • December 20, 1984
    ...STATEMENT OF FACTS The relevant facts of the case were accurately set forth by Justice Martin of the Court of Appeal, 152 Cal.App.3d 1212, 200 Cal.Rptr. 57, and are summarized here in essentially verbatim Gary A. Mitchell and Bette Gae Mitchell are two of more than one hundred plaintiffs wh......

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