Opinion
E054585
01-26-2012
JOHN GREGORY WASIK et al., Petitioners, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; CORT W. KLOKE, as Trustee, etc., et al. Real Parties in Interest.
Lewis Brisbois Bisgaard & Smith, John S. Lowenthal, Jeffry A. Miller, Amy R. Freeland and Matthew B. Stucky for Petitioners. No appearance for Respondent. Michael D. May for Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. CIVBS1000099)
OPINION
ORIGINAL PROCEEDINGS; petition for writ of mandate. Kirtland L. Mahlum, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Petition granted.
Lewis Brisbois Bisgaard & Smith, John S. Lowenthal, Jeffry A. Miller, Amy R. Freeland and Matthew B. Stucky for Petitioners.
No appearance for Respondent.
Michael D. May for Real Parties in Interest.
INTRODUCTION
In this matter, we have reviewed the petition, the response filed by real parties in interest, and petitioner's reply. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
DISCUSSION
First, we reject real parties in interest's suggestion that writ review is unnecessary in this case. While it is true that writ proceedings are not the favored means of review of discovery disputes (Perlan Therapeutics, Inc. v. Superior Court (2009) 178 Cal.App.4th 1333, 1342), we consider it appropriate in this case to correct not merely an abuse of discretion, but a clear legal error.
It is appropriate for one party to serve discovery requests on another party to ascertain what contentions will be made at trial and upon what facts the responding party relies to support those contentions. (See Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, 1261, and cases cited.) First established as a judicial rule, the proposition has been codified in Code of Civil Procedure section 2030.010, subdivision (b). That subdivision also provides that "[a]n interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on information obtained or legal theories developed in anticipation of litigation or in preparation for trial." (Code Civ. Proc., § 2030.010, subd. (b).) While a party may not ask for the contents of an expert's report or the opinions of an expert communicated to counsel, it is proper to ask for the "asserted facts constituting the general positions" of the responding party. (Tehachapi-Cummings County Water Dist. v. Superior Court (1968) 267 Cal.App.2d 42, 46 [clearly explaining the distinction].) To this extent the rule, as currently codified, trumps the work product protection.
Our reading of the discovery requests at issue here does not indicate that petitioners are attempting to discover the actual reports or opinions of any experts retained by real parties in interest. Petitioners merely seek to learn what the issues are that must be addressed in preparation for trial, and what facts real parties in interest rely upon to support their positions. In this respect, no distinction can be drawn between facts supplied by lay witnesses and facts that may have been noted for their significance by experts. (See Tehachapi-Cummings County Water Dist. v. Superior Court, supra, 267 Cal.App.2d at p. 46.) Without the information sought, petitioners would approach trial blindfolded—the precise result the discovery rules are intended to prevent. (Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, 274.)
DISPOSITION
Accordingly, the trial court erred in refusing to compel responses, and we grant the petition.
Let a peremptory writ of mandate issue directing the Superior Court of San Bernardino County to vacate its order denying petitioners' motions to compel and to enter a new order granting said motions.
Petitioners are directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
Petitioners to recover their costs.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J.
We concur:
McKINSTER
J.
MILLER
J.