Surf and Sand, LLC v. City Of Capitola et al, No. 5:2009cv05542 - Document 56 (N.D. Cal. 2010)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF SURF & SAND'S MOTION TO COMPEL by Judge Patricia V. Trumbull granting in part and denying in part 42 Motion to Compel (pvtlc2, COURT STAFF) (Filed on 10/29/2010)
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Surf and Sand, LLC v. City Of Capitola et al Doc. 56 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 SURF & SAND, LLC., 12 13 14 15 16 ) ) Plaintiff, ) ) v. ) ) ) CITY OF CAPITOLA, ET AL., ) ) Defendants. ) ___________________________________ ) Case No.: C 09-05542 RS (PVT) ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF SURF & SAND’S MOTION TO COMPEL [Docket No. 42] 17 18 19 INTRODUCTION Plaintiff Surf & Sand, LLC moves for the following: (1) to compel answers at depositions; 20 (2) for a protective order regarding speaking objections and coaching of witnesses during 21 deposition; (3) for an order authorizing further deposition of Robert Begun; and (4) for an award of 22 costs totaling $7,081.16. (“Surf & Sand”). Defendant City of Capitola opposes the motion. 23 (“Capitola”). On October 5, 2010, the parties appeared for hearing. Having reviewed the papers 24 and considered the arguments of counsel, plaintiff Surf & Sand’s motion to compel is granted in part 25 and denied in part.1 26 27 28 1 The holding of this court is limited to the facts and particular circumstances underlying the present motion. ORDER, page 1 Dockets.Justia.com 1 BACKGROUND 2 Surf & Sand is a rent-controlled mobile home park located in the City of Capitola. It 3 overlooks the Pacific Ocean. Under current rent-control laws, Surf & Sand rents spaces to tenants 4 for $300 a month. Surf & Sand could rent the spaces to tenants for five times that amount on the fair 5 market. It later decided to close the mobile home park and “leave it as bare dirt, with no proposed 6 new use.” However, the local city council voted to deny permission to Surf & Sand to close its park 7 on the grounds that its proposed relocation benefits for displaced residents would be inadequate. 8 Surf & Sand alleges that the denial to close its park was improper, and defendant Capitola failed to 9 make any findings regarding what constitutes adequate relocation benefits for displaced mobile 10 home residents. 11 “In essence, [Surf & Sand] alleges [that Capitola] wants to force the owners of [Surf & Sand] 12 to sell the Park to the tenants for a fraction of the underlying value of the property and that the entire 13 administrative process, including the final decision, was designed from the beginning to prevent 14 closure.” Mot. at 2. 15 Specifically, plaintiff Surf & Sand challenges the administrative process that led the city 16 council to deny it permission to close the mobile home park, and alleges that Capitola violated and 17 disregarded federal and state law, its municipal code, and its own local coastal plan for purely 18 political purposes. Plaintiff Surf & Sand alleges federal claims for private taking, substantive due 19 process, procedural due process, and other claims for fraud, breach of contract, and rescission 20 arising out of a consulting agreement Capitola required to process the closure application. “[T]he 21 City’s real purpose was to confiscate the underlying property of [Surf & Sand] from the owners for 22 the benefit of the tenants.” Mot. at 4. Finally, plaintiff Surf & Sand alleges that Capitola’s actions 23 toward Surf & Sand is disparate from its treatment of city-owned and other tenant-owned mobile 24 home parks and is unrelated to any legitimate state objective. Id. 25 During the course of deposing some city council members, defendant Capitola has asserted 26 certain privileges, including the deliberative process and mental process privileges. Defendant 27 Capitola has also asserted the attorney-client privilege as to discussions held by the city council and 28 its attorneys during closed sessions. ORDER, page 2 1 2 LEGAL STANDARD “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any 3 party’s claim or defense. . . . “ Fed. R. Civ. P. 26(b). “For good cause, the court may order 4 discovery of any matter relevant to the subject matter involved in the action.” Id. “Relevant 5 information need not be admissible at the trial if the discovery appears reasonably calculated to lead 6 to the discovery of admissible evidence.” Id. “The scope of discovery permissible under Rule 26 7 should be liberally construed; the rule contemplates discovery into any matter that bears on or that 8 reasonably could lead to other matter that could bear on any issue that is or may be raised in a case.” 9 Phoenix Solutions, Inc. v. Wells Fargo Bank, N.A., et al., 254 F.R.D. 568, 575 (N.D. Cal. 2008). 10 In federal question cases, the courts look to federal law to determine whether a privilege 11 applies. Kenneth Kaufman v. Board of Trustees, et al., 168 F.R.D. 278, 280 (C.D. Cal. 1996)(citing 12 Kerr v. United States District Court Northern District Of California, 511 F.2d 192, 197 (9th Cir. 13 1975)). “The rationale of the Court of Appeals in Kerr is applicable here. The plaintiff is seeking to 14 enforce a right secured by federal law against a local governmental entity, and to assure plaintiff’s 15 ability to prosecute his claims, federal law must be used to determine the existence and scope of any 16 claimed privilege.” Id. “Apart from not being a privilege recognized under federal law, the Brown 17 Act does not establish an evidentiary privilege at all; rather, it merely permits the withholding of 18 certain information from the public generally.” Id. 19 “‘Federal common law recognizes the deliberative process privilege.’” Brian Thomas v. 20 Matthew Cate, 2010 WL 671254 *2 (E.D. Cal. Feb. 19, 2010)(citing North Pacifica, LLC v. City of 21 Pacifica, 274 F. Supp. 2d 1118, 1120 (N.D. Cal. 2003)). “‘The deliberative process privilege 22 exempts from discovery information reflecting advisory opinions, recommendations, and 23 deliberations comprising part of a process by which government decisions and policies are 24 formulated.” Id. (internal citations omitted). “The burden of establishing application of the 25 deliberative process privilege is on the party asserting it.” Id. 26 “The deliberative process privilege is a qualified rather than an absolute privilege.” U.S. v. 27 Lawrence K. Irvin, 127 F.R.D. 169, 172 (C.D. Cal. 1989) (internal citations omitted). “‘The primary 28 rationale for the intra-governmental opinion privilege is that effective and efficient governmental ORDER, page 3 1 decisionmaking requires a free flow of ideas among government officials and that inhibitions will 2 result if officials know that their communications may be revealed to outsiders.’” Id. 3 “Whether agencies or local legislators are involved, there are two requirements to establish 4 the applicability of the privilege. First, the document or testimony must be pre-decisional- i.e., it 5 must have been generated before the adoption of [a] policy or decision.’ Second, the document or 6 testimony ‘must be deliberative in nature, containing opinions, 7 recommendations, or advice about . . . policies [or decisions].’” North Pacifica, LLC v. City of 8 Pacifica, 274 F. Supp. 2d at 1121. 9 The court must balance the following factors in determining whether the qualified privilege 10 applies: (1) the interest of the litigants, and ultimately of society, in accurate judicial fact finding; (2) 11 The relevance of the evidence sought to be protected; (3) the availability or unavailability of 12 comparable evidence from other sources; (4) the seriousness of the litigation and the issues involved; 13 (5) the presence of issues concerning alleged governmental misconduct; (6) the role of government 14 in the litigation itself; (7) the possibility of future timidity by government employees; and (8) the 15 federal interest in the enforcement of federal law. Id. at 173. 16 “The mental process privilege is a corollary to the deliberative process privilege that 17 ‘protects uncommunicated motivations for a policy or decision.’” Brian Thomas v. Matthew Cate, 18 2010 WL 671254 at *7. “The ‘mental process privilege is ‘inextricably intertwined’ with the 19 deliberative process privilege.’” Id. “Like the deliberative process privilege, the mental process 20 privilege must be raised with particularity, and the party asserting the privilege bears the burden of 21 establishing its applicability.” Id. “Whether the mental process privilege affords broader protection 22 than the deliberative process privilege is unsettled.” Id. “It is clear, however, that like the 23 deliberative process privilege, the mental process privilege is a qualified one that may be overcome 24 by a litigant.” Id. 25 Permissible discovery may be limited by the attorney-client privilege. Phoenix Solutions, 26 Inc. v. Wells Fargo Bank, N.A., et al., 254 F.R.D. at 575. The party asserting the attorney-client 27 privilege bears the burden of proving that it applies. Pauline Weil, et al. v. Investment/Indicators, 28 Research and Management, Inc., et al., 647 F.2d 18, 25 (9th Cir. 1981)(internal citations omitted). ORDER, page 4 1 2 3 DISCUSSION I. Deliberative Process and Mental Process Privileges As a initial matter, plaintiff Surf & Sand seeks documents or testimony that pre-date 4 Capitola’s decision to deny it permission to close the mobile home park. And the documents or 5 testimony are deliberative in nature. Therefore, the two requirements to establish the applicability of 6 the privilege have been met here. 7 The court then considers the 8 factors set forth above and balances them to determine 8 whether the qualified privilege applies. First, the above-captioned action involves federal 9 constitutional claims, and the federal interest in the enforcement of federal constitutional rights 10 weighs in favor of disclosure. Second, the evidence sought to be protected is relevant. Plaintiff Surf 11 & Sand seeks to determine the background and rationale for the city council to deny its application 12 to close the mobile home park. The evidence is relevant to its constitutional taking, procedural due 13 process, and substantive due process claims. Third, any evidence of discriminatory intent may not 14 be apparent from the administrative record itself. Nevertheless, plaintiff Capitola may also use other 15 sources of circumstantial and direct evidence. See Village of Arlington Heights, et al. v. 16 Metropolitan Housing Development Corp., 429 U.S. 252, 266-268, 97 S.Ct. 555 (1977). Fourth, the 17 allegations here are serious. Plaintiff Surf & Sand has alleged that defendant Capitola has engaged 18 in violations of federal constitutional rights. Fifth, the issues in the case involve allegations 19 regarding decisions made by the city council for the City of Capitola and a challenge to the 20 administrative process used to reach those decisions. As a result, there are issues of alleged 21 government misconduct. Sixth, the City of Capitola is a defendant in the above-captioned action. 22 Seventh, there is no indication that there is a possibility of future timidity by government employees. 23 And eighth, based on the claims alleged there is a federal interest in enforcing federal laws. 24 Therefore, on balance, the court finds that the deliberative process privilege is overcome here. 25 Accordingly, plaintiff Surf & Sand may question city council members regarding their “objective 26 manifestations of the decision-making process.” North Pacifica, LLC v. City of Pacifica, supra, 274 27 F. Supp. 2d at 1125. 28 For example, NP may ask the City Council members about what they said to others about NP and Condition 13(b), what they heard, what they read, what they were told ORDER, page 5 1 and so forth. The Court will not allow NP to inquire as to the City Council members’ subjective uncommunicated thoughts. Such inquiry is likely to be obviated to a large extent because NP can explore the objective evidence that surrounded and illuminated the decisionmaking process. 2 3 4 Id. at 1125-1126. However, plaintiff Surf & Sand may not question city council members regarding 5 their subjective uncommunicated thoughts. 6 II. 7 8 9 10 11 Attorney-Client and Work-Product Privileges Federal common law recognizes the attorney-client privilege. North Pacifica, LLC v. City of Pacifica, supra, 274 F. Supp. 2d at 1126. The Ninth Circuit describes it as: (1) when legal advice of any kind is sought (2) from a professional legal adviser in his ir her capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are, at the client’s instance, permanently protected (7) from disclosure by the client or by the legal adviser (8) unless the protection be waived. 12 Id. “The party asserting the privilege has the burden of establishing all of its elements and, even if 13 established, the privilege is strictly construed.” Id. 14 Here, defendant Capitola contends that certain city council meeting sessions are protected by 15 the attorney-client privilege. It states that the sessions were closed because an attorney was present 16 and the discussions involved pending and prospective litigation. Like the discussions in North 17 Pacifica LLC v. City of Pacifica, however, defendant Capitola has not shown that “all 18 communications during the closed sessions of the City Council, with the presence of legal counsel, 19 are necessarily privileged.” Id. at 1127. 20 In reviewing the various city council minutes attached to defendants’ request for judicial 21 notice, it appears there were closed sessions held with legal counsel present regarding potential and 22 actual cases. See, e.g., Defendants’ Request for Judicial Notice, Exh. A; Plaintiff’s Supplemental 23 Request for Judicial Notice, ¶ 1, Exh. 1. Defendant Capitola bears the burden of establishing all of 24 the elements of privilege. At this juncture, it has not met its burden. The city council minutes 25 merely reflect that the city council held closed sessions in a conference with legal counsel regarding 26 existing litigation, including Surf & Sand, LLC v. City of Capitola. For example, defendant Capitola 27 must show, inter alia, that legal advice was sought, that legal counsel was there and acting in the 28 capacity of a professional legal adviser, that the communications related to that purpose, and that the ORDER, page 6 1 communications were made in confidence. Therefore, plaintiff Surf & Sand may inquire during 2 deposition regarding the closed sessions. Defendant Capitola may object, and then endeavor to 3 establish all of the elements of privilege. If plaintiff Surf & Sand believes that the elements have not 4 been met for the closed sessions, it may move to compel further responses at deposition. 5 III. 6 Conduct of Counsel at Deposition Counsel shall refrain from making speaking objections or engaging in other colloquy. All 7 objections to the form of a question shall be made on the record by stating “objection, form.” 8 Deposing counsel may ask for clarification of the objection if he or she so chooses. Otherwise, 9 counsel defending the deposition shall make no further statement about the pending question, nor 10 ask the deposing attorney for clarification. However, the deponent may ask for clarification of any 11 question if in good faith he does not understand any portion of it. If a question calls solely for 12 privileged information, counsel defending the deposition may instruct the witness not to answer by 13 stating “objection, privilege, I instruct the witness not to answer.” If the full response to a question 14 might include both privileged and unprivileged information, the deponent shall provide only the 15 unprivileged information, if any. The objection on grounds of privilege shall be preserved without 16 being stated on the record. Further, counsel defending the deposition shall not prompt or “remind” 17 the witness that he is not to disclose attorney-client communications. All preparation of the witness 18 regarding how to handle questions that may call for both privileged and unprivileged information 19 shall be completed prior to the deposition. Any objections on the grounds of relevance are preserved 20 for trial and shall not be stated on the record at a deposition. Any other objections shall be made by 21 stating “objection” and citing the section number of the applicable Federal Rule of Evidence, 22 without further discussion. 23 IV. Further Deposition of Robert Begun 24 During the course of Robert Begun’s deposition, the parties contacted the court to resolve the 25 dispute regarding the various privileges discussed above. The court sought further briefing from the 26 parties and as a result, the deposition of Mr. Begun was curtailed. Moreover, the deposition 27 transcript is replete with lengthy objections related to those privileges. Therefore, it is appropriate to 28 allow plaintiff Surf & Sand with additional time to depose him. Accordingly, plaintiff Surf & Sand ORDER, page 7 1 may depose Mr. Begun for an additional 3 hours. 2 V. 3 Motion for Attorneys’ Fees and Costs Plaintiff Surf & Sand further moves for an award of attorneys’ fees and costs totaling 4 $7,081.16. It estimates that $13,000 is the total amount of attorneys’ fees and costs incurred in 5 bringing the above motion. This total amount includes $810.16 for obtaining an expedited 6 deposition transcript for Mr. Begun, and an estimate of $500 for traveling and appearing for the 7 hearing. Plaintiff Surf & Sand “contends that the manner in which the City asserted the objections 8 was improper and unnecessarily interfered with the deposition process.” Mot. at 20-21. 9 As a general matter, a motion for attorneys’ fees must be separately filed. See Civ. L.R. 7- 10 8(a). Notwithstanding the above, plaintiff Surf & Sand’s motion for attorneys’ fees and costs is 11 denied. 12 CONCLUSION 13 14 For the foregoing reasons, plaintiff Surf & Sand’s motion to compel is granted in part and denied in part and the motion for attorneys’ fees and costs is denied. 15 16 17 IT IS SO ORDERED. Dated: October 28, 2010 PATRICIA V. TRUMBULL United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 ORDER, page 8
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