People ex rel. Lockyer v. Superior Court

• Decision Date: 29 September 2004
• Docket Number: No. D044147.,D044147.
• Citation: 122 Cal.App.4th 1060,19 Cal.Rptr.3d 324
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE ex rel. Bill LOCKYER, as Attorney General, etc., Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; Cole National Corporation et al., Real Parties in Interest.

19 Cal.Rptr.3d 324

122 Cal.App.4th 1060

The PEOPLE ex rel. Bill LOCKYER, as Attorney General, etc., Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent Cole National Corporation et al., Real Parties in Interest.

No. D044147.

Court of Appeal, Fourth District, Division 1.

September 29, 2004.

Bill Lockyer, Attorney General, Andrea Hoch, Assistant Attorney General, Albert Norman Shelden, Susan A. Ruff, Diane de Kervor and T. Michelle Laird, Deputy Attorneys General, for Petitioner.

No appearance for Respondent.

Jones Day, Elwood Lui, San Francisco, Thomas R. Malcolm, Richard J. Grabowski and Mark D. Kemple, Irvine, for Real Parties in Interest.

NARES, J.

On this petition for writ of mandate, petitioner People of the State of California seek to set aside discovery orders made by the court related to real parties in interest Cole National Corporation, Cole National Group, Inc., Cole Vision Corporation, Cole Vision Services, Inc., Pearle, Inc., Pearle Vision, Inc., Pearle VisionCare, Inc., and Stanley C. Pearle's (collectively, Cole's) request for production of documents and deposition notices directed to the People. The court ordered that the People (1) produce all documents responsive to Cole's request for production of documents, regardless of whether they were privileged or confidential, unless the People had raised a specific objection as to particular documents; (2) produce documents in the possession of nonparty state agencies; (3) produce without objection documents produced by the People in a separate federal court action that were the subject of a protective order; (4) produce for deposition persons most knowledgeable at nonparty state agencies; and (5) not raise any objections to the deposition notices or at the depositions that were raised with regard to Cole's request for production of documents.

The People filed this petition, asserting that the court abused its discretion in making those discovery orders as (1) they raised timely objections under Code of Civil Procedure¹ section 2031 on the grounds of privilege to Cole's request for production of documents and served a privilege log, and the court never ordered that they produce a more detailed log or objections; (2) they were not required to produce documents in the possession of nonparty state agencies; (3) they were not required to produce for deposition witnesses from nonparty state agencies; and (4) they were not required to produce documents subject to a protective order in the federal court action unless a similar protective order was entered into in this action. We grant the People's petition, with instructions.

FACTUAL AND PROCEDURAL BACKGROUND²

A. The Pleadings

The People's complaint charged Pearle, Inc. (Pearle), an optician and retailer of eyeglasses, and Pearle VisionCare, Inc. (Pearle VisionCare), a provider of optometry services, with violating Business and Professions Code sections 655 and 2556, which govern the practice of optometry and prohibit opticians and eyeglass retailers from advertising optometric services, and forbid opticians and eyeglass retailers from having financial connections with optometrists, as well as other practices. Pearle and Pearle VisionCare filed a cross-complaint against the Attorney General of the State of California (Attorney General) and Kathleen Hamilton, Director of the Department of Consumer Affairs (Director), alleging that the laws regulating relationships between opticians/optical retailers and optometrists, including Business and Professions Code sections 655 and 2556, violated the commerce, equal protection, and due process clauses, as well as the First Amendment of the federal Constitution. Pearle and Pearle VisionCare also asserted that they were not subject to Business and Professions Code sections 655 and 2556 because Pearle VisionCare was an approved provider under the Knox-Keene Healthcare Service Plan Act (Knox-Keene Act), and thus exempt from those provisions.

B. Injunction and First Appeal

The People filed a motion for preliminary injunction, seeking to enjoin Pearle from advertising eye exams and to enjoin Pearle VisionCare from charging a fee for dilating patients' eyes with eye drops. The court granted the People's request for a preliminary injunction, prohibiting Pearle from disseminating advertising in California that would mislead consumers into believing that it employed optometrists. The order further provided that Pearle could still mention eye examinations, doctors and optometrists in its advertisements as long as they contained a disclaimer that Pearle did not employ optometrists or provide eye exams in California. The court also enjoined Pearle VisionCare from charging a fee for dilating patients' eyes with eye drops.

Pearle and Pearle VisionCare and the People appealed from the order granting the preliminary injunction. In a published opinion filed on November 26, 2003 (Cole I), we affirmed in part and reversed in part. We first concluded that the court properly enjoined Pearle's advertising, as it was both illegal and misleading. However, we also concluded that the court erred in allowing Pearle to continue advertising optometric services if it also provided a disclaimer that Pearle VisionCare provided those services. We further concluded that the court erred in enjoining Pearle VisionCare from charging a fee for dilating patients' eyes with eye drops, and we rejected the People's other objections to the terms of the injunction. On March 3, 2004, the California Supreme Court granted Pearle and Pearle VisionCare's petition for review (S121724), and the matter is presently pending before that court.

C. Demurrer and Second Appeal

The Attorney General and Director demurred to Pearle and Pearle VisionCare's cross-complaint, arguing that their claims failed as matter of law. The court sustained the demurrer without leave to amend and the court dismissed appellants' cross-complaint. Pearle and Pearle VisionCare appealed that judgment. (Pearle Vision, Inc. v. The People ex rel. Bill Lockyer (D041969, appending).) On April 16, 2004, we ordered the appeal stayed based upon the parties' request and stipulation, pending the California Supreme Court's resolution of the issues pending in Cole I.

D. Federal Court Litigation

In July 2002, Lenscrafters, Inc., Eye Care Center of America and the National Association of Optometrists and Opticians (NAOO), filed a civil rights action under 42 United States Code 1983 in the United States District Court for the Eastern District of California, against the Attorney General and the Department of Consumer Affairs (DCA), challenging the constitutionality of Business and Professions Code sections 655 and 2556 (NAOO case or federal case).

In August 2003, the parties in the NAOO case entered into a stipulation and protective order, whereby the People and DCA agreed to produce to the plaintiffs in that action certain documents they asserted were confidential or privileged, upon the agreement that the plaintiffs in that case would not disclose them outside of that litigation. The Attorney General and the DCA produced documents to the plaintiffs in the NAOO case, along with a detailed privilege log of documents being withheld on the grounds of privilege.

E. Discovery Dispute

In May 2002, Cole served a request for production of documents on the People, seeking production of 322 categories of documents. The People filed timely responses, which contained objections based upon attorney-client, attorney work product and official information privileges, and protections under the Information Practices Act (Civ.Code, § 1798 et seq.). The People also objected to Cole's definition of the words "People" and "You" and "Yours" in the discovery requests as those terms could include nonparties, and to Cole's definition of what documents were within its "possession, custody and control."

The People and Cole began a "meet and confer" process wherein they discussed certain of the People's responses and objections. In August 2002, Cole requested that the People provide a privilege log describing any documents that the People considered privileged and that should not be produced.

Thereafter, all proceedings in the matter were stayed from October 2002 to February 14, 2003. On February 13, 2003, the day before the stay was to be lifted, the People provided a privilege log to Cole. However, the privilege log listed categories of documents, rather than individual privileged documents. The People offered to amend the privilege log if Cole's requests for production were narrowed. The People and Cole thereafter met and conferred concerning the privilege log, Cole asserting that it was inadequate and that they would move to compel all documents being withheld on the basis of privilege if a more detailed log was not produced.

In March 2003, Cole brought a motion to compel production of documents. Cole first objected to the People's decision to identify responsive documents, as opposed to producing them to Cole. Cole also objected to the People's identification only of documents that supported their claims, as opposed to ones that were responsive but might not support those claims. Cole challenged three objections the People made to production: (1) that they need not produce documents that were in Cole's possession or matters of public record and therefore "equally available" to Cole; (2) that production would be unduly burdensome; and (3) that their documents were organized in a manner that production would invade their work product privilege. Cole also sought a ruling that the People's "boilerplate" objections—that the requests for production were "vague and ambiguous," "without limitation as to scope and time," and constituted "expert witness discovery"—were without merit. Finally, Cole sought an order compelling the People to provide a statement that they would comply with the request for production and produce all responsive documents....