Oceanside Union School District v. Superior Court of San Diego County

• Citation: 373 P.2d 439,58 Cal.2d 180,23 Cal.Rptr. 375
• Court: United States State Supreme Court (California)
• Decision Date: 19 July 1962
• Parties: , 373 P.2d 439 OCEANSIDE UNION SCHOOL DISTRICT OF SAN DIEGO COUNTY et al., Petitioners, v. The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; BRIGHTER HOMES, INC., et al., Real Parties in Interest. L. A. 26649.

Page 375

23 Cal.Rptr. 375

58 Cal.2d 180, 373 P.2d 439

OCEANSIDE UNION SCHOOL DISTRICT OF SAN DIEGO COUNTY et al., Petitioners, v. The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;

BRIGHTER HOMES, INC., et al., Real Parties in Interest.

L. A. 26649.

Supreme Court of California, In Bank.

July 19, 1962.

Henry A. Dietz, County Counsel, and James E. Miller, Deputy County Counsel, for petitioners.

Alan M. Firestone, City Atty., william W. Coppinger, Deputy City Atty., George C. Hadley, San Diego, Charles E. Spencer, Jr., Los Angeles, and Robert E. Reed, Sacramento, as amici curiae on behalf of petitioners.

No appearance for respondent.

Roby F. Hayes, Oceanside, for real parties in interest.

PETERS, Justice.

Petitioner Oceanside Union School District ¹ is the plaintiff, and the real parties in interest are the defendants, in a rpoceeding in eminent domain pending in respondent court by which petitioner seeks to condemn certain parcels of land belonging to the various defendants. In preparation for trial defendants filed and served upon plaintiff written interrogatories calling for the names and addresses of each person who had rendered to plaintiff an opinion as to the market value of or severance damage to each individual parcel of land owned by defendants, together with their opinions, and the area contained in each parcel. No request was made for the written reports of the appraisers. Plaintiff answered all but the two interrogatories calling for the opinions of its appraisers as to market value and severance damage. As to these it filed objections supported with a memorandum of points and authorities. Defendants then filed their points and authorities in opposition to the objections. The matter was then heard by respondent court. No issue was raised as to the propriety of the manner in which the matter was presented below, or to the procedures which resulted in the order under review. ²

Plaintiff's objections as well as its points and authorities, were limited to two grounds; i. e., that the two interrogatories call for information protected by the privileges declared in subdivisions 2 and 5 of section 1881 of the Code of Civil Procedure, and that they are 'calculated to annoy, embarrass and oppress the plaintiff and set at naught the considerable expenses of the plaintiff.' In support of the first ground, plaintiff filed the declaration of its deputy superintendent in which declarant alleged that the appraisals were made under written contracts the primary and dominant purpose of which was to obtain the appraisers' opinions as to value and damages incident to condemnation, which opinions were to be transmitted to the county counsel, and which were so transmitted by the deputy superintendent, 'in the strictest of confidence for the purpose of assisting our legal representatives in the event that it should be necessary to acquire said properties by litigation.' Plaintiff also placed in evidence the contracts themselves, each of which contained the following paragraph:

'The Appraiser and the Governing Board of the SCHOOL DISTRICT understand and agree that the Report is being prepared for the purpose of the conduct of litigation by the County Counsel and that all parts thereof are to be treated as strictly confidential. The Appraiser shall take all necessary steps to insure that no member of his staff or organization divulges any information concerning the Report except to members of the Governing Board of the SCHOOL DISTRICT, its authorized representatives and County Counsel.'

Some doubt was cast on both of these quoted matters by the testimony of the deputy superintendent given at the hearing. ³ During his examination (and particularly on cross- examination) the following facts were developed: that the contracts between the plaintiff and its appraisers were executed on November 1, 1960, and provided that reports should be rendered to plaintiff within 45 days (or by January 4, 1961); that the instant action was not commenced until April 11, 1961; that in the interim, between January 4th and April 11th, plaintiff used the appraisals in an effort to negotiate purchase of the properties, in an effort to avoid litigation; that such negotiation was carried on by the employees of the plaintiff, and not by its attorney; that the deputy superintendent delivered the original copy of each report to the county attorney, keeping a duplicate original of each for his own use; that his purpose in making such delivery was 'for the County Counsel to use in case of litigation, and to advise the school district as to (a) course of procedure;' that the dominant purpose for the preparation of the appraisers' reports was 'to determine the fair market value of the properties involved;' that before entering into the contracts, plaintiff anticipated negotiating with the property owners, but withheld such negotiations until the reports were received, because it 'wanted professional help in determining the fair market price;' that its attitude at the time was that it would 'rather buy without litigation,' and to that end it entered into the contract with the appraisers 'to assist the governing board in determining a fair market price;' that since the same reports required for the negotiations would be required for litigations, the witness was unable to state which was the dominant purpose of the appraisers' reports.

The trial court entered its order overruling petitioner's objections, and required it to answer the interrogatories. We issued an alternative writ of prohibition to review the propriety of that order. This was a proper use of that writ. ⁴

On the merits, the petition raises several issues. These are: (1) Does the information sought come within the protection of the provisions on privilege (subds. 2 and 5 of Code Civ.Proc. § 1881)? (2) Should the respondent court have sustained the objections on the ground that the information sought was the 'work product' of petitioner's attorney? (3) Must respondent's order be reversed because it failed to find facts or state reasons for its order? (4) Is respondent's order fatal because it failed to include any restriction or limitation on the disclosure? (5) Did respondent abuse its discretion because it made a contrary order in a similar proceeding? ⁵

None of these contention require a reversal or vacation of the order of which complaint is made.

The opinions of the appraisers are not privileged:

The information sought by the interrogatories is not privileged under the provisions of subdivision 5 of section 1881 of the Code of Civil Procedure. That subdivision reads:

'A public officer can not be examined as to communications made to him in official confidence, when the public interest would suffer by the disclosure.'

Even if it be assumed, contrary to the later holding of this court on that issue, that the opinion here sought is a 'communication' made in 'confidence' to a public officer, it has not been shown that the public interest would suffer by the disclosure. This is necessary if the material is to be privileged under this section. The contracts, which petitioner offered in evidence below, call for the opinions of the appraisers 'of the fair market value of the property.' Whatever may have been petitioner's purpose in obtaining those opinions in the first instance, the subject matter of those opinions has now gone into litigation. Obviously, the appraisers' opinions of value can serve no purpose other than as evidence in that litigation. To hold that the public interest would suffer by disclosure at this time would be to distort the obvious purpose of that section. While it is true that petitioner might gain a tactical advantage at the trial if its adversaries are required to come into court without knowledge of the appraisers' valuation of their property, such an advantage is not to be equated with 'public interest.' ⁶ The purpose of the condemnation action (out of which this proceeding has arisen) is to determine the fair market value of the property. Assumedly, petitioner believes that its appraisers have arrived at a fair market value. If public interest, as the words are used in section 1881, would suffer by disclosure of the fair market value of the condemned property, then the statute on privilege would have to fall before the constitutional requirements that no private property be taken without due process of law. (See People v. McShann, 50 Cal.2d 802, 330 P.2d 33; Priestly v. Superior Court, 50 Cal.2d 812, 330 P.2d 39; and People v. Kiihoa, 53 Cal.2d 748, 3 Cal.Rptr. 1, 349 P.2d 673, in each of which it was held that the constitutional requirement of a fair trial overrides the privilege which the police might otherwise have in refusing to name their informers.)

The City of San Diego, as amicus curiae, argues on this point that disclosure of the appraisers' opinions would be tantamount to giving private persons information obtained by the school district at public expense in violation of the limitation against giving away public property. Obviously, such interpretation would also bar the agency from disclosing the appraisers' opinions at the time of trial. The only distinction between disclosure at trial and pretrial discovery is one of time. To hold that appraisers' opinions, purchased with public funds, may not be disclosed without 'giving away public property' would prevent the basic use for which those opinions were purchased.

In support of its contention that the appraisers' opinions are privileged under subdivision 2 of section 1881 (the attorney-client privilege), petitioner calls attention to the testimony produced at the hearing below. It points out that although the appraisers were hired and submitted their reports prior to the filing of the complaint, they were retained for the purpose of anticipated litigation and with the specific intent that their reports be delivered to the attorney in confidence. As already pointed out, this...