PSC Geothermal Services Co. v. Superior Court

• Court: California Court of Appeals
• Writing for the Court: KREMER
• Citation: PSC Geothermal Services Co. v. Superior Court, 31 Cal.Rptr.2d 213, 25 Cal.App.4th 1697 (Cal. App. 1994)
• Decision Date: 17 June 1994
• Docket Number: No. D020035,D020035
• Parties: PSC GEOTHERMAL SERVICES COMPANY et al., Petitioners, v. The SUPERIOR COURT of Imperial County, Respondent; IMPERIAL COUNTY DISTRICT ATTORNEY, Real Party in Interest.

Page 213

31 Cal.Rptr.2d 213

25 Cal.App.4th 1697

PSC GEOTHERMAL SERVICES COMPANY et al., Petitioners, v. The SUPERIOR COURT of Imperial County, Respondent IMPERIAL COUNTY DISTRICT ATTORNEY, Real Party in Interest.

No. D020035.

Court of Appeal, Fourth District, Division 1, California.

June 17, 1994.

Rehearing Denied July 13, 1994.

Morgan, Lewis & Bockius, C.G. Gordon Martin, Andrea Sheridan Ordin, Los Angeles, Gray, Cary, Ames & Frye, Gray, Cary, Ware & Freidenrich, Jay W. Jeffcoat, Marcelle E. Mihaila, San Diego, Coleman & Marcus, Michael D. Marcus, McClintock, Weston, Benshoof, Rochefort, Rubalcava & MacCuish, David S. MacCuish, Patrick W. Dennis, Malcolm C. Weiss, Eugene A. Burrus, Los Angeles, Landels, Ripley & Diamond, James A. Bruen, and Melinda L. Haag, San Francisco, for petitioners.

No appearance, for respondent.

William E. Jaynes, Dist. Atty., Joseph F. Beard, Asst. Dist. Atty., and Gale M. Filter, El Centro, for real party in interest.

KREMER, Presiding Justice.

PSC Geothermal Services Company (PGS) and Ormesa Operators are being investigated by the Imperial County District Attorney (District Attorney) and the Department of Toxic Substance Control for the alleged improper disposal of geothermal filters at a local landfill. Petitioners' attorneys engaged the services of Environ and Analytical Technologies Inc. (ATI), environmental consultants, to assist in preparing the defense against potential civil and criminal suits. On October 28, 1993, search warrants were executed on the environmental firms. The warrants sought "all correspondence, paper, electronic or otherwise ..." from employees at Environ and "correspondence" from those at ATI to lawyers at the firm representing PGS. PGS complains the District Attorney did not follow the special master procedures set out in Penal Code section 1524, the court did not grant a hearing to determine whether the items in question are privileged, the court erroneously sealed the affidavit in support of the search warrant and the court would not allow PGS to number and copy the seized material. PGS ¹ brought a petition for writ of mandate to this court and a stay was issued. After issuance of the alternative writ and oral argument, we grant the petition in part by directing the superior court to allow petitioner access to the allegedly privileged matter so it will have the opportunity to bring motions to determine whether any of the materials are privileged, work product or beyond the scope of the warrant. In addition, the court is directed to hold a hearing to determine whether the official information privilege applies to the affidavit in support of the search warrant. In all other respects the petition is denied.

I Special Master Provisions

Petitioners object to the seizure of materials from the workplaces of their consultants. They argue the seizure was improper because the special master provisions of PENAL CODE SECTION 1524² were not employed and suggest that all the seized materials must be returned.

Section 1524 provides, in pertinent part:

"[N]o search warrant shall issue for any documentary evidence in the possession or under the control of any person, who is a lawyer as defined in Section 950 of the Evidence Code, a physician as defined in Section 990 of the Evidence Code, a psychotherapist as defined in Section 1010 of the Evidence Code, or a clergyman as defined in Section 1030 of the Evidence Code, and who is not reasonably suspected of engaging or having engaged in criminal activity related to the documentary evidence for which a warrant is requested unless [certain procedures] have been complied with...." (§ 1524, subd. (c).)

Under the statutory procedures, the court is required to appoint a "special master" ³ to accompany the person(s) serving the warrant. (§ 1524, subd. (c)(1).) When the warrant is served, the special master must "inform the party served of the specific items being sought and that the party shall have the opportunity to provide the items requested. If the party, in the judgment of the special master, fails to provide the items requested, the special master shall conduct a search for the items in the areas indicated in the search warrant." (§ 1524, subd. (c)(1).) If the party served with the search warrant "states that an item or items should not be disclosed, they shall be sealed by the special master and taken to court for a hearing." (§ 1524, subd. (c)(2).) At the hearing, the party served with the search warrant may object to the disclosure of privileged items and may otherwise challenge the validity of the search and seizure. (§ 1524, subd. (c)(2).)

The trial court found section 1524 did not apply here because the offices searched were those of environmental consultants who are not expressly named in the statute and thus not covered by it. PGS argues the seized materials, although physically located at the consultants' offices, were still under the control of the attorney and, thus, were covered by the statute. ⁴

In construing a statute, the task of the court is to determine and give effect to the Legislature's intent. (Wells Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1095, 282 Cal.Rptr. 841, 811 P.2d 1025; People v. Freeman (1988) 46 Cal.3d 419, 425, 250 Cal.Rptr. 598, 758 P.2d 1128.) The court begins with the language used. (Title Ins. & Trust Co. v. County of Riverside (1989) 48 Cal.3d 84, 91, 255 Cal.Rptr. 670, 767 P.2d 1148.) The court attempts to give effect to the usual, ordinary import of the language and to avoid making any language mere surplusage. (Regents of University of California v. Public Employment Relations Bd. (1986) 41 Cal.3d 601, 607, 224 Cal.Rptr. 631, 715 P.2d 590; Fontana Unified School Dist. v. Burman (1988) 45 Cal.3d 208, 218, 246 Cal.Rptr. 733, 753 P.2d 689.) "The words must be construed in context in light of the nature and obvious purpose of the statute where they appear. [Citation.]" (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 354, 257 Cal.Rptr. 356.) The statute "must be given a reasonable and commonsense interpretation consistent with the apparent purpose and intention of the Legislature, practical rather than technical in nature, and which, when applied, will result in wise policy rather than mischief or absurdity. [Citations.]" (Beaty v. Imperial Irrigation Dist. (1986) 186 Cal.App.3d 897, 902, 231 Cal.Rptr. 128.)

Initially, we note the language of the statute itself indicates it applies only to four designated professionals, i.e., attorneys, physicians, psychotherapists and clergymen; the statute does not expressly extend the special master provisions to others such as consultants or experts hired by those professionals. Significantly, the designated professionals are defined by reference to Evidence Code provisions which relate to privileges, i.e., the attorney-client privilege (Evid.Code, § 950 et seq.), the physician-patient privilege (Evid.Code, § 990 et seq.), the psychotherapist-patient privilege (Evid.Code, § 1010 et seq.) and the clergyman-penitent privilege (Evid.Code, § 1030 et seq.). The language of the statute, by specifying the four professional groups as limited by definitional provisions in the Evidence Code, reflects a legislative intent to limit the special master procedures to the four named professionals and to protect attendant privileges and not to extend the special master procedures to other professionals such as experts and consultants, who might be hired by the named professionals.

PGS argues the Legislature's use of the terms "in the possession or under the control of any person, who is a lawyer" in section 1524, subdivision (c) (emphasis added) shows an intent to include not only documentary evidence in a lawyer's office but also in the offices of a consultant hired by a lawyer because documentary evidence in the consultant's office may be said to be in the lawyer's constructive possession or "under the control" of the lawyer.

To support its argument, PGS points to cases involving the possession of contraband, particularly "constructive possession" cases. (See People v. Showers (1968) 68 Cal.2d 639, 643-644, 68 Cal.Rptr. 459, 440 P.2d 939; Armstrong v. Superior Court (1990) 217 Cal.App.3d 535, 538-539, 265 Cal.Rptr. 877; see also CALJIC No. 1.24.) Initially, we hesitate to import the definition of "possession" from contraband cases into the special master provisions. The term "possession" in those cases evolved in the context of public policies, of questionable relevance here, regarding culpability for possessing contraband. (Armstrong v. Superior Court, supra, 217 Cal.App.3d at p. 539, 265 Cal.Rptr. 877.) To that extent at least, the term "possession" as used in cases of contraband crimes has a specialized meaning.

In contraband cases, a defendant may be found guilty of possessing contraband if he has actual or "constructive" possession of the contraband. "Constructive possession exists when a defendant 'maintains control or a right to control the contraband.' [Citation.]" (Armstrong v. Superior Court, supra, 217 Cal.App.3d at p. 538, 265 Cal.Rptr. 877.) We have observed: "For purposes of drug transactions, the terms 'control' and 'right to control' are aspects of a single overriding inquiry into when the law may punish an individual who is exercising such a degree of intentional direction over contraband that he can be justifiably and fairly punished in the same manner as if he were indeed in actual physical possession of a controlled substance." (Armstrong v. Superior Court, supra, 217 Cal.App.3d at p. 539, 265 Cal.Rptr. 877.) "[T]he concepts of 'control' and 'right to control' " are not clearly defined, even in contraband cases, but the Supreme Court has held a defendant has "constructive possession" if he maintains " 'some control or right to control over contraband in the physical possession of another.' " (Id. at pp. 538-539, 265 Cal.Rptr. 877, italics omitted.)

Second, even if we were to apply the...