Wilson v. Superior Court, Contra Costa County
| Decision Date | 11 February 1957 |
| Docket Number | No. 17586,17586 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Francis L. WILSON, Marie Wilson, Robert Busby and C. Marie Busby, Petitioners, v. The SUPERIOR COURT OF the State of CALIFORNIA IN AND FOR the COUNTY OF CONTRA COSTA, Respondents. |
Tinning & DeLap, Robert T. Eshleman, James E. Cox, Martinez, for petitioner.
Francis Collins, Dist. Atty., John B. Clausen, Deputy Dist. Atty., Martinez, for respondents.
Wallace, Garrison, Norton & Ray, San Francisco, for real party in interest, Woodward, Clyde & Associates, and others.
Barfield & Barfield, San Francisco, for real party in interest East Bay Municipal Utility Dist.
The petitioners are plaintiffs in two actions pending in the superior court against a school district, Richard J. Woodward and others, claiming damages to their property allegedly caused by removal of lateral support when certain excavations were made upon the adjoining property of the school district.
Woodward and his associates were engaged by the district to plan and supervise the work which allegedly caused the injuries to plaintiffs' property, plaintiffs' theory being that Woodward and the district were negligent in the planning and the prosecution of the work. 1
Plaintiffs took Woodward's deposition as an adverse party under authority of sections 2021 and 2055 of the Code of Civil Procedure.
He refused to answer certain questions, 18 of which are set forth in the petition. Plaintiffs requested the superior court to require him to answer these questions but the court refused to do so. We are asked to direct the superior court to require the witness to answer. 2
With respect to each question we must determine (1) whether it is 'legal' and 'pertinent', Code Civ.Proc. §§ 2064, 2065, and proper when asked of a party by an adverse party 'under cross-examination', § 2055, upon deposition, § 2021, subd. 1, and (2) whether it can be answered by this witness without violating the attorneyclient privilege, § 1881, subd. 2.
(1) We will first consider the proprety of the questions without regard to the defendant district's claim of the attorney-client privilege.
We will do so in the light of the issues framed by the complaint, 3 bearing in mind that he is an expert as well as a defendant and, therefore, may be asked for his opinions within the area of his competency. See Lawless v. Calaway, 24 Cal.2d 81, 89-91, 147 P.2d 604. In each instance we will undertake to determine whether the question is 'legal' and 'pertinent' even if the defendants interposed no objection of that nature at the time, the parties having stipulated that 'all objections propounded to the said witness shall be reserved by each of the parties, save and except any objections as to the form of the questions propounded. 4
The plaintiffs allege and the defendants admit that the following are among the issues raised by the pleadings: (1) Was the excavation made by defendants carelessly designed, supervised and executed? (2) Was the earth slide caused by the defendants' acts in excavating the school district's property, or by the independent negligence of a certain utility district and parties unknown in failing to protect and properly maintain certain high pressure water mains? (3) Are the plaintiffs guilty of contributory negligence?
The witness testified that after the slide occurred he investigated the situation; that looking at the situation and watching the sequence of events 'convinced me that we were not at fault'; he did not make up his mind on the spur of the moment, he studied the situation for a while before reaching a decision; he had to talk to different people and find out what had happened first, about 'the sequence of events' leading up to this; he had to study the ground to see for himself what was occurring; he started considering causes right after he got to the site and started looking around; he started considering causes right away; he could not say just when he started thinking of responsibility of the thing but he started to study it, looked for causes, talked to people there who told him what the sequence of events was and 'gradually I started forming my opinion then as to the cause and responsibility of the thing'; he needed to know the sequence of events to determine the causes of the slide; he talked with plaintiff Francis Wilson; and that during the period of planning and supervising the work he had retained engineering expert Harry Seed and discussed with him the question of stability, cuts and fills.
In the light of this testimony it was obviously proper to ask him 'what was said' in the conversation with Wilson (1), 5 'who told you what the sequence of events was in the case' (2), 'how did you determine the sequence of events in this case' (3), and has engineer Seed 'discussed this matter with you since this slide occurred?' (10).
The witness also testified that he was satisfied with the provisions he made for the problems involved in the excavation; if he had the job to do again he would not do anything materially different than he had done; the area involved in the excavation being a hill area and containing ground water was, before the excavation, an area susceptible to slides; he would not have recommended a steeper cut slope than 2 1/2 to 1, would have wanted 3 to 1 along the Wilson property unless the cut bank were not so high.
It was proper to ask how steep a cut slope he would have recommended in 'the area of the higher part of the cut--that part that did slide, didn't it?' (12), a compound question, perhaps, but not objected to on that ground.
He testified that the danger of instability of a cut slope is increased from ground water if it is allowed to flow near the surface of the cut slope; he would expect the ground water flow from the Wilson property toward the school property to be rather deep, opposite a certain knoll it would probably be 10 to 15 feet. It was proper to ask him how deep he would expect the ground water to be 'at the place of origin of the slide along that cut' (13); also, whether the slide that actually occurred began somewhere close to the corner of the two cuts along the Wilson cut (14); and 'didn't this slide follow the exact outline of your cut on the school ground?' (15).
The witness testified, as to the basis of his opinion that he was not responsibile for the damage caused the plaintiffs, that he followed conservative practice, the slopes were stable and he didn't think the failure of the slope caused the damage to the property. It was proper to ask, 'well, the slope did fail, didn't it, and slide and damage the property * * * that is a fact, isn't it?' (4); '* * * is any part of the reason why the Wilson slope slid and the Arlington slope didn't due to the fact that the Arlington slope had three drains and the Wilson slope had one drain?' (5); 6 'could this slide have been prevented?' (16); 'What caused the water main to break * * *?' (18); and '* * * is that your opinion * * * that * * * the Utility District and these unknown parties that piled rocks around the area of the pipeline caused the destruction of these homes?' (17).
The witness testified that the Wilson house was on a location that could have stability problems if proper precautions were not taken. He was then asked, 'do you contend that any part of the damage to or on the Wilson house is my clients' fault or any builder's fault?' (6). This is not a proper question. The word 'fault' does not necessarily call for a legal conclusion. In an appropriate context it well might denote a purely factual relationship of cause and effect. But 'contend' is not a word to put in the mouth of a witness. What the witness might contend or claim or urge has no evidentiary value in this setting. This witness' 'contention' as a party is declared in his answer, denying liability on his part and alleging that plaintiffs negligently caused or contributed to the injuries
Asked if the plaintiffs had safe, stable dwellings before this work began, Woodward said he did not investigate the plaintiffs' homes as such; he investigated the school property; he thought there could have been things about their property that he was unaware of that might have made them unsafe. It was proper then to ask him, 'are you aware of anything now that made their houses unsafe * * *?' (7).
He was then asked: if the excavation had not been made next door to the plaintiffs' houses and the utility district pump house 'these three structures * * * would still be sitting there * * *?' The cross-examiner indicated he was asking the opinion based on any information necessary for the witness to answer, whether received by him before or after the occurrence of the slide (8). The question was proper unless privileged under the asserted attorney-client relationship.
The next question was substantially the same as the last, modified to eliminate from the witness' mind any knowledge acquired by him after his employment by the district to assist it in the defense of the case. The witness replied, it would be impossible for him to eliminate knowledge acquired after that date and answer the question. He also refused to answer the question, '* * * Isn't it true, that the excavation as undertaken here was a substantial factor in causing the damage to these three structures'; and the question, if a hole had not been 'dug next to these three structures they wouldn't have been able to slide into it * * *' (9). The witness explained that he could not answer such questions fairly without applying knowledge that he gained after the slide occurred.
The question, '* * * when you first went out there to look over this slide * * * you were very alarmed and concerned that responsibility for it might be attached to your organization' was improper and need not be answered (11). His state of mind on that occasion is not relevant to any issue in the case....
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