Mitchell v. Superior Court of Fresno County
| Citation | 200 Cal.Rptr. 57,152 Cal.App.3d 1212 |
| Court | California Court of Appeals |
| Decision Date | 21 February 1984 |
| Parties | Gary A. MITCHELL et al., Petitioners, v. The SUPERIOR COURT OF FRESNO COUNTY, Respondent. SHELL OIL COMPANY et al., Real Parties in Interest. Civ. F2997. |
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:
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:
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:
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
...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......