Government Liability Update

District Court May Bar Prisoner Plaintiff's Crucial Expert Evidence for Failure to Timely Comply with Expert Discovery

In Merchant v. Corizon Health, published April 2, 2021, the 9th Circuit Court of Appeals affirmed a district court's exclusion of expert evidence and summary judgment in favor of prison officials.  The plaintiff, a prisoner, alleged that the state department of corrections and its medical provider were deliberately indifferent to his medical needs and were negligent.  After obtaining a continuance of expert disclosure to accommodate his attorney's vacation, the plaintiff disclosed his only non-retained expert two days late; disclosed his expert report and non-retained experts five days late, and without the required information for the non-retained experts; disclosed more non-retained experts 61 days past the deadline; disclosed three rebuttal experts but produced the report for only one, and the report for another five days past the deadline; and disclosed a late affidavit from a non-retained expert.  The district court granted the provider's motion in limine to exclude the plaintiff's expert witnesses under Federal Rules of Civil Procedure 37(c)(1).  The district court excluded all expert witnesses except the single rebuttal expert whose report was disclosed timely.  The court then granted summary judgment on the ground that the plaintiff had insufficient expert evidence to establish either deliberate indifference or negligence.  It also ruled that the Prison Litigation Reform Act barred the plaintiff's 42 U.S.C. § 1983 claim because the plaintiff failed to exhaust his administrative remedies.

The 9th Circuit agreed that in light of the plaintiff's persistent disregard of Rule 26(a)(2)'s disclosure deadlines through the course of discovery, the district court acted within its discretion in excluding his improperly disclosed expert evidence.  The party facing that sanction bears the burden of showing that the discovery violation is either substantially justified or harmless, and whether a lesser sanction would be appropriate.  Where the violating party fails to move for a lesser sanction, district courts need not consider lesser sanctions.  The plaintiff did not do so.  The defendants also established that the plaintiff did not exhaust the administrative remedies he was required to exhaust.

State Controller Cannot Be Held Liable under Abuse of Process for Improperly Using Discovery Product to Conduct Audit

In Yee v. Superior Court (Thrivent Financial for Lutherans), published January 8, 2019, the First District Court of Appeal, Division 2 issued a writ directing the trial court to grant a motion for judgment on the pleadings.  The State Controller's Office initiated an audit of the real party insurance company's records.  The insurance company and Controller's Office filed cross-litigation concerning the audit.  The Controller filed a motion to compel production of records from the insurer sought under discovery.  The court granted the motion, allegedly after the Controller's counsel assured the court that the the information obtained in discovery would not be used to conduct the audit.  The Controller allegedly then used the records produced to pursue the audit.  The litigation was eventually dismissed by order of an appellate court.  The insurer then sued the Controller's office for abuse of process, alleging that Controller's Office employees used the discovery information to conduct the audit, in violation of court order and protective order.

The appellate court ruled that the lawsuit was barred by Government Code section 815.  Section 815 bars nonstatutory causes of action against public entities.  The central issue was whether the Controller's Office could be held vicariously liable under Government Code section 815.2, subdivision (a).  Section 815.2 provides for public entity respondeat superior liability for the acts or omissions of employees, but only if the act or omission would have given rise to a cause of action against the employee.  Under the facts of the case, no Controller's Office employee could be held liable for abuse of process.  The abuse was using the records in the audit.  Only the State Controller's Office, not its individual employees, had the power to perform the audit.

Apex Deposition Rule Bars Deposition of Agency Head about Agency's Interpretation of Statutes

In Contractors' State Licensing Board v. Superior Court (Black Diamond Electric), ordered published May 9, 2018, the First District Court of Appeal, Division 1 issued a peremptory writ in the first instance reversing a trial court decision denying a protective order.  After the petitioner board initiated a disciplinary proceeding against the real party electrical contractor, the contractor brought a declaratory relief action seeking the interpretation of various terms in the Labor Code and injunctive relief.  The contractor noticed the deposition of the secretary/chief executive officer of the Board.  The Board sought a protective order to prevent the deposition, on grounds including the apex deposition rule.  The trial court denied the motion, ruling that the officer had direct factual information and was directly involved in relevant issues before he was appointed executive officer.

The appellate court ruled the trial court had erred.  Under the apex deposition rule, California and federal courts generally do not allow parties to take the depositions of high government officials, including heads of boards.  To take such a deposition, the party must show that the official has direct personal factual knowledge pertaining to material issues in the action; and that the information cannot be gained from any other source.  Those showings were not made here.  The rule applies to the deponent here, regardless of whether the information sought was obtained when the deponent served the Board in a lower office.  The contractor did not seek factual information; instead, it sought the officer's opinion on statutory interpretation, which is a legal issue.  The contractor also did not show the information was unavailable elsewhere, since the board had published interpretations of the statutes at issue.

Administrative Mandamus Petitioner's Failure to Submit to Deposition on Standing Justified Terminating Sanction

In Creed-21 v. City of Wildomar, ordered published December 19, 2017, the Fourth District Court of Appeal, Division 2 affirmed a defense judgment after an order imposing an issue sanction in a CEQA petition action.  The petitioner challenged a city decision permitting real party in interest Wal-Mart to build a retail complex in the city.  Wal-Mart alleged that the petitioner was a shell corporation that lacked standing to bring the petition.  Wal-Mart noticed a Person Most Qualified deposition and sought production of documents.  After the trial court granted a motion to compel the deposition, and the PMQ failed to appear for deposition, produce documents, or pay the monetary sanctions the court imposed, the court imposed an issue sanction on standing, which acted as a terminating sanction.

The appellate court ruled that the trial court acted within its discretion.  The petitioner's conduct showed that lesser sanctions were not effective.

Public Records Act Petitioner Is Prevailing Party if Discovery Prompts Agency to Disclose Responsive Documents

In Sukumar v. City of San Diego, published August 15, 2017, the Fourth District Court of Appeal, Division 1 reversed a trial court decision denying a fee motion brought by a California Public Records Act petitioner whose petition was defeated.  The petitioner sought records about his property and his neighbors.  Not satisfied with the city's production of documents, the petitioner brought a petition for writ of mandate under the CPRA.  The city objected to discovery the petitioner propounded, contending that discovery was not available in CPRA actions.  At a hearing on a motion to compel, a deputy city attorney stated on the record that the city had produced all responsive records.  She offered to provide a declaration to that effect.  The court ordered a deposition of a person most knowledgeable to confirm the city had produced all responsive documents.  The city undertook additional searches before and after the PMK deposition,  It located more responsive documents, and provided them to the petitioner.  The petitioner's CPRA petition was ultimately denied on the ground that the city had produced the responsive documents.  The petitioner moved for his attorney fees.  The trial court found that the petitioner was not the prevailing party, because the litigation had not motivated the city to produce the additional documents produced after the case started.

The appellate court ruled that no substantial evidence supported the trial court's finding.  A CPRA petitioner who loses the petition is nevertheless the prevailing party if the litigation results in documents responsive to the CPRA request being produced.  It is not enough that the documents are produced after the litigation begins; there must be a causal connection between the litigation and the production, so that the agency produces documents it would not have produced if the litigation had not taken place.  Here, the deputy city attorney's representation that everything had been produced, and then the additional production of documents after the PMK deposition was ordered, indicated that the city undertook additional searches in response to the PMK deposition order and discovered documents it had mistakenly not produced before.  That established that the petitioner was the prevailing party, and entitled to his fees under the CPRA.

Discovery Is Available in CPRA Actions, But Trial Court May Limit It

In City of Los Angeles v. Superior Court (Anderson-Barker), published March 2, 2017, the Second District Court of Appeal affirmed in part and reversed in part an order by the trial court granting a California Public Records Act petitioner's motion to compel the petitioner city to produce documents in discovery, and awarding sanctions against the city.  The city had responded to several written discovery requests in the action with a single identical objection that the petitioner was not permitted to propound discovery as a matter of right in a CPRA petition action.  The trial court granted the motions to compel, issued discovery sanctions against the city, and ruled that the city had waived all objections.  

The appellate court, ruling on an issue of first impression, affirmed the trial court's conclusion that discovery is available in CPRA writ petition actions.  The Discovery Act applies in special proceedings that are civil in nature, so long as the Legislature has not exempted the proceeding from discovery.  A CPRA action is a special proceeding that is civil in nature, and has not been exempted.  Nevertheless, numerous provisions in the Discovery Act permit trial courts to limit or restrict discovery that would otherwise be available.  When a CPRA petition party moves to compel responses to discovery, the trial court must determine whether the discovery sought is necessary to resolve whether the agency has a duty to disclose, and whether the request is justified given the need for an expeditious resolution.  Trial courts may look to federal law addressing discovery in FOIA cases, which permits discovery but limits it.  The appellate court reversed the grant of sanctions, ruling that the city acted with substantial justification given the uncertainty of the law.  It also reversed the order that the city had waived objections.  When a party challenges the applicability of the Discovery Act, it is not subject to waiver principles under the Act.

Outside Counsel's Billing Invoices for Ongoing and Active Litigation Not Subject to CPRA

In Los Angeles County Board of Supervisors v. Superior Court (ACLU), published December 29, 2016, a divided California Supreme Court reversed the lower appellate court's ruling that a public entity's outside counsel's billing invoices were categorically excluded from the California Public Records Act as attorney-client privileged communications.  The ACLU had sought invoices specifying the amount any outside firm had billed the petitioner county for defense in nine specified lawsuits.  The county agreed to produce redacted invoices from three lawsuits no longer pending, but declined to produce invoices in the six pending lawsuits.  Among its grounds was that they were privileged attorney-client communications that contained work product, were therefore privileged under the Evidence Code, and were therefore exempt from the CPRA under Government Code section 6254(k).  The appellate court issued a writ petition reversing the decision, and holding that all billing invoices are protected attorney-client communications.

The Supreme Court split 4-3 on the question of whether the invoices were protected from the CPRA.  The majority held that the contents of an attorney's invoice to a client are privileged only if they either communicate information for the purpose of legal consultation, or risk exposing information that was communicated for such a purpose. The majority further held that the latter category includes any information in any invoice that reflects work in active and ongoing litigation.  The majority reasoned that invoices in themselves are not protected communications, because they are submitted for the purpose of getting paid rather than for purposes that are the "heartland" of attorney-client privilege: information conveyed for the purpose of legal representation.  But they can contain information conveyed for that purpose.  Because invoices in ongoing and pending litigation pose too great a risk of disclosing the substance of legal consultation and strategy.  But information such as cumulative totals of billing for long-concluded litigation pose less of a danger of disclosing the substance of legal consultation.

The dissent opined that the attorney-client privilege applies to all attorney-client communications in the course of a representation, regardless of content; and that the passage of time does not affect the privilege.

 

Under California Public Records Act, Person May Seek Production of Documents Person Already Has; Public Interest in Response to Whistleblower Complaint Outweighs Privacy Rights in Records

In Caldecott v. Superior Court (Newport-Mesa School Dist.), published December 21, 2015, the Fourth District Court of Appeal, Division 3, issued a writ reversing a trial court's decision denying production of documents under the California Public Records Act.  The petitioner was the former executive director of human resources for the real party school district.  While he held that position, the petitioner filed a complaint against the district superintendent.  The petitioner alleged that the complaint alleged that the superintendent created a hostile work environment, and also alleged improprieties with money.  The district alleged that the complaint discussed only personnel matters. The school board responded in writing that it would take no action on the complaint.  Shortly afterward, the superintendent terminated the petitioner's employment, and the school board approved the action.  The petitioner sought production of the documents under the CPRA.   The trial court denied the petitioner's writ petition, on the ground that the petitioner already had the documents.

The appellate court held that the fact the petitioner already had the documents was not a ground for denying the request.  The motive of a person requesting documents under the CPRA is irrelevant.  Further, the petitioner sought the documents so that he could disseminate them without concern that the district would object.  The appellate court ruled that the documents were personnel documents, requiring the court to balance the privacy interest in the documents against the public interest in their disclosure.  Since the documents concerned allegations of conduct by a high-ranking official, the appellate court (after an in camera review) determined that the public interest in them outweighed privacy.  The court overruled the official information privilege objection to their production, ruling that production would not affect internal deliberation.  It directed the trial court, on remand, to review the documents for attorney-client privileged matters, which would not be subject to production.  It awarded the petitioner his attorney fees.

Court Has No Authority to Order Mental Examination of Parents as Part of Mental Examination of Minor Plaintiff

In Roe v. Superior Court (Hollister School Dist.), published December 18, 2015, the Sixth District Court of Appeal issued a writ reversing a trial court's order permitting a psychiatrist to interview the parents of a minor plaintiff who alleged that another minor student had molested him at school.  The minor sued the school district, through his father as guardian ad litem.  The minor's mother was also a plaintiff.  The school district had moved the court for an order permitting the mental examination of the plaintiff under Code of Civil Procedure section 2032.020, to include interviews of the parents by the examining psychiatrist.  

 

The court held that under Section 2032.020's language, a court has no power to permit the mental examination of a minor party's parents as part of the minor's mental examination.  The statute permits a court to order the mental examination of a party to the action, an agent of the party, or a natural person in the custody or under the care of a party.  Although the mother was a party, she was not a party for purposes of this order, which sought a psychiatric examination of only the minor plaintiff.  The guardian ad litem is not a party.  Neither parent is the minor plaintiff's agent, or is in the minor's custody or control. Therefore, the trial court could not order their interviews.

The appellate court declined to decide two other issues--whether the parents had a right to be present for the examination, and whether the plaintiffs had a right to production of copywritten testing materials--on procedural grounds.