Preview
[Exempt From Filing Fee
Government Code § 6103]
1 ANDREW W. SCHWARTZ (State Bar No. 87699)
SARAH H. SIGMAN (State Bar No. 260924)
2 BENJAMIN GONZALEZ (State Bar No. 325853)
SHUTE, MIHALY & WEINBERGER LLP
3 396 Hayes Street
San Francisco, California 94102
4 Telephone: (415) 552-7272
Facsimile: (415) 552-5816
5 schwartz@smwlaw.com
sigman@smwlaw.com
6 bgonzalez@smwlaw.com
7 Attorneys for Plaintiff
CITY OF HALF MOON BAY
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN MATEO, NORTHERN BRANCH
11 CITY OF HALF MOON BAY, Case No. 21-CIV-01560
12 Plaintiff, NOTICE OF MOTION AND MOTION TO
QUASH SUBPOENA AND FOR
13 v. SANCTIONS: MEMORANDUM OF POINTS
AND AUTHORITIES
14 THOMAS J. GEARING; DANIEL K.
GEARING; DOES 1 through 50, APNs: 056-096-240, 056-096-480, 056-127-030,
15 inclusive; and all persons unknown 056-127-040, 056-128-090, and 056-125-210
claiming an interest in the property,
16 Date: July 28, 2022
Defendants. Time: 2:00 p.m.
17
THOMAS J. GEARING and DANIEL Assigned for All Purposes to:
18 K. GEARING, Hon. Danny Y. Chou, Dept. 22
19 Cross-Complainants, Action Filed: March 23, 2021
Trial Date: None set
20 v.
Filed Concurrently with City's Notice Of Motion
21 CITY OF HALF MOON BAY, and And Motion To Quash Subpoena, And For
ROES 1 through 100, inclusive, Sanctions; Declaration Of Christopher Carneghi
22
Cross-Defendant.
23
24
25
26
27
28
Not. and Mot. to Quash Subpoena, and for Sanctions
Case No. 21-CIV-01560
1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE THAT on July 28, 2022, at 2:00 p.m., in Department 22 of the
3 above-entitled court, located at 1050 Mission Road, South San Francisco, California 94080,
4 plaintiff City of Half Moon Bay (“City”) will move the Court to quash the subpoena that
5 defendants Thomas and Daniel Gearing (“the Gearings”) delivered to the business address of the
6 City’s expert appraiser, Christopher Carneghi. The City further seeks sanctions for its cost to
7 quash this meritless subpoena.
8 This motion is made under Code of Civil Procedure Section 1987.1 on the grounds that
9 defendants’ subpoena has not been properly served, provide insufficient time to respond, and
10 seeks information that is wholly privileged and unavailable to Defendants at this time.
11 This motion to quash is based on this Notice and Motion, the Memorandum of Points and
12 Authorities below, the Declarations of Christopher Carneghi and Sarah H. Sigman filed
13 concurrently herewith (“Carneghi Dec.” and “Sigman Dec.,” respectively), on all pleadings,
14 papers, and records on file in these actions, and on such further argument and evidence as may
15 be presented at or before the time of hearing on this motion.
16 MEMORANDUM OF POINTS AND AUTHORITIES
17 The City is in the process of condemning six undeveloped parcels that the Gearings own
18 within the West of Railroad area in Half Moon Bay, California (collectively, “the Property”).
19 Starting in December 2020, the City appraised the Property, made an offer to purchase it, and
20 then enacted a Resolution of Necessity authorizing this action, all in compliance with
21 California’s Eminent Domain Law. The Gearings moved unsuccessfully to stay the City’s action
22 while they pursued claims in federal court for alleged violation of their rights to substantive due
23 process and equal protection and for uncompensated taking of the Property (together, the
24 “federal claims”).
25 After this Court rejected the Gearing’s request for a stay and the federal court granted the
26 City’s request that it abstain from deciding the federal claims while the City’s eminent domain
27 action proceeds, the Gearings filed a Cross-Complaint in the City’s action, adding both their
28 federal claims and similar claims under the California Constitution, in addition to a claim for
2
Not. and Mot. to Quash Subpoena, and for Sanctions
Case No. 21-CIV-01560
1 precondemnation damages. This Court sustained the City’s demurrer to the Gearings’ claims for
2 violation of equal protection and due process rights and for uncompensated takings under state
3 law on February 24, 2022. Thus, only the City’s eminent domain action and the Gearings’
4 federal claims and claim for precondemnation damages remain.
5 The Court has not yet set a trial date for this matter, and so the parties have not demanded
6 the exchange of expert information much less completed that exchange or otherwise designated
7 testifying expert witnesses. See Code Civ. Proc. § 1258.210 (demand for expert exchange within
8 10 days of trial setting), 1258.220 (expert exchange 90 days before trial in eminent domain
9 action or as agreed by the parties). 1 In fact, the City contacted counsel for the Gearings on
10 March 31, 2022 to suggest an early exchange of expert information and reports to facilitate
11 resolution of any legal and evidentiary disputes that might arise from different assumptions
12 relevant to the parties’ valuations (see Code Civ. Proc. § 1260.040), but counsel for the Gearings
13 refused. Sigman Dec. ¶ 2, Exs. A-B.
14 Instead, the Gearings sought to subpoena documents from the City’s appraiser. On May
15 9, 2022, the Gearings delivered a business records subpoena to the office of Mr. Carneghi, who
16 provided the appraisal that supported the City’s offer to purchase the Property pursuant to
17 Government Code section 7267.2 and its deposit of just compensation pursuant to Code of Civil
18 Procedure section 1255.020. Carneghi Dec. ¶ 2. Mr. Carneghi was not in his office when the
19 process server attempted to deliver the subpoena, though he later contacted that individual and
20 suggested that he leave the subpoena at Mr. Carneghi’s office. Id. ¶ 3. 2 Id. The subpoena
21 requires production of documents on May 20, 2022, only 11 days after it was delivered. Id. ¶ 3,
22 Ex. A.
23 The Gearings’ subpoena is premature and wholly inappropriate, even if they had
24
25 1
Any effort by the Gearings to justify discovery from Mr. Carneghi based on their federal
claims fails for the same reason that, even under general discovery procedures rather than those
26 specific to condemnation, the parties have not yet demanded or exchanged expert discovery. See
Code Civ. Proc. § 2034.210 et seq (procedures for demand and provision of expert discovery
27 through simultaneous exchange after setting of the initial trial date).
2
Note that the individual delivering the subpoena did not complete the attached proof of service,
28 implicitly acknowledging that the delivery was deficient. Carneghi Dec.., Ex.A.
3
Not. and Mot. to Quash Subpoena, and for Sanctions
Case No. 21-CIV-01560
1 completed the mandatory personal service on Mr. Carneghi and allowed sufficient time for the
2 requested production. The City contacted counsel for the Gearings on May 10, 2022, requesting
3 withdrawal of the subpoena to avoid the cost of this Motion. Sigman Dec. ¶ 3, Ex. C. It received
4 no response. Id. ¶ 4. Accordingly, the City now asks the Court to quash the subpoena and order
5 that the Gearings reimburse the City’s cost to address this inappropriate use of a discovery tool.
6 Code Civ. Proc. §§ 1987.2; 2023.010(a)-(c), 2023.030(a).
7 I. The City’s Motion to Quash is timely filed, and urgent.
8 This motion is timely filed. A motion to quash is typically filed before the time identified
9 for production, although the Court has the authority to consider the motion even if it is brought
10 after the date for production. In re R.R. (2010) 187 Cal.App.4th 1264, 1278. A motion to quash
11 must be “reasonably made.” Code of Civ. Proc. § 1987.1(a); Lee v. Swansboro Country Prop.
12 Owners Ass’n (2007) 151 Cal.App.4th 575, 583 (motion to quash subpoena reasonably made
13 when filed one week before the scheduled hearing, when the subpoena had been issued more
14 than a month before the hearing).) Here, the subpoena requests production of documents on May
15 20, 2022. It was delivered to Mr. Carneghi’s office on May 9, 2022, providing less than the
16 minimum 15 days to respond required by statute. Carneghi Dec. ¶ 3, Ex. A; Code Civ. Proc. §
17 2020.410(c). Accordingly, this motion to quash is reasonably and timely filed.
18 II. The Court should quash the Subpoena for lack of personal service.
19 Parties must serve subpoenas personally, including those for business records. Code Civ.
20 Proc. § 2020.220; see also Naser v. Lakeridge Athletic Club (2014) 227 Cal.App.4th 571, 578
21 (“obtaining business records through a deposition subpoena is a “deposition” within the plain
22 meaning of the Civil Discovery Act”). The Gearings did not do so here. Instead a process server
23 left the subpoena for Mr. Carneghi at his office. Carneghi Dec. ¶ 3. The Court should quash the
24 subpoena on this basis alone.
25 III. Defendants’ Subpoena seeks only privileged information.
26 Defendants’ subpoena seeks not only Mr. Carneghi’s notes, analysis, and work product
27 related to the Property and this case, but also all documents and communications related to five
28 other properties. Carneghi Dec., Ex. A (Attachment 3). Any expert discovery in this case is
4
Not. and Mot. to Quash Subpoena, and for Sanctions
Case No. 21-CIV-01560
1 premature, and discovery of Mr. Carneghi’s work related to other properties is both irrelevant to
2 this action and protected by privilege. See Mack v. Superior Court In and For Sacramento
3 County (1968) 259 Cal.App.2d 7, 11 (appraisal privileged until author designated to testify);
4 Swartzman v. Superior Court (1964) 231 Cal.App.2d 195, 204 (same).
5 The Code of Civil Procedure prohibits discovery from experts that have not been
6 properly designated as expert witnesses. Code Civ. Proc. § 2034.210(b) (procedure for expert
7 designation). Such premature discovery would violate the statutory directive for mutual,
8 simultaneous disclosure. Id. § 2034.260 (method of mutual exchange); see also Swartzman, 231
9 Cal.App.2d at 204 (“The rules of discovery contemplate two-way disclosure.”). Section
10 2034.210 makes clear that discovery of a designated expert retained by a party can occur only
11 “after the setting of the initial trial date for the action,” which has not happened in this matter.
12 Moreover, if a party retains an expert solely as a consulting expert, the attorney-client
13 privilege applies to communications made by the client or the attorney to the expert in order for
14 the expert to properly advise counsel. DeLuca v. State Fish Co., Inc. (2013) 217 Cal.App.4th
15 671, 688. The attorney-client privilege applies to communications with an expert “to whom
16 disclosure is reasonably necessary for the transmission of the information or the accomplishment
17 of the purpose for which the lawyer is consulted.” Evid. Code § 952. Courts have held
18 repeatedly that this includes communications with and work performed by a consulting expert.
19 DeLuca, 217 Cal.App.4th at 688; Swartzman, 231 Cal.App.2d at 204; Roush v. Seagate
20 Technology LLC (2007) 150 Cal.App.4th 210, 225.
21 The mere fact that a consulting expert may serve as a testifying witness does not allow
22 discovery of their consultation and work product. Courts have drawn a “bright line at the point
23 where it becomes reasonably certain that the expert will testify—holding that the attorney-client
24 privilege and work product protection apply prior to that point, but not subsequent to it.”
25 DeLuca, 217 Cal.App.4th at 688.
26 The Eminent Domain Law expressly excludes the initial appraisal that the condemning
27 agency must conduct as part of its preliminary steps toward acquisition from evidence and
28 prohibits defendants from calling that appraiser as a witness. Code Civ. Proc. § 1255.060. The
5
Not. and Mot. to Quash Subpoena, and for Sanctions
Case No. 21-CIV-01560
1 agency has no obligation to rely on the same appraiser or analysis at trial. Id. Accordingly, the
2 City’s use of Mr. Carneghi’s preliminary valuation does not alter the fact that the City has not
3 designated Mr. Carneghi as a testifying witness or waived any privileges that protect his work.
4 In Swartzman, the court approved an order prohibiting the deposition of an undesignated
5 appraiser prior to the prescribed mutual exchange of designated witness data. 231 Cal.App.2d at
6 204. The court held that “no good cause was shown for the taking of the deposition” of a
7 “potential expert witness in advance of the exchange of appraisal data” where the party seeking
8 discovery refused offers of mutual exchange of data. Id. The court thus affirmed that
9 “[c]onsultation between expert and counsel may appropriately be given broad immunity from
10 discovery, both as to expert and as to counsel, because none of the expert’s opinion . . . is
11 relevant evidence in the case.” Id. at 202. Indeed, the opinion of the consulting expert “will
12 remain wholly irrelevant and immaterial as evidence until the expert is called as a witness on the
13 trial and shown to be qualified to give competent opinion testimony.” Id. at 203. When a party
14 has designated an expert witness, “then his opinion has become a factor in the cause.” Id.
15 Here, the City proposed to counsel for the Gearings that the parties should schedule the
16 expert exchange now, well before trial, because the parties have already identified substantial
17 differences in their approaches to valuation of the Property that will likely require motion
18 practice. Sigman Dec. ¶ 2, Ex. A.; see also Code Civ. Proc. §1260.040 (providing procedure to
19 resolve “evidentiary or other legal issue affecting the determination of compensation” well
20 before trial). Similarly to the defendant in Swartzman, 231 Cal.App.2d at 204, counsel for the
21 Gearings rejected the City’s proposed mutual exchange and instead attempted to unilaterally
22 subpoena Mr. Carneghi. Sigman Dec. ¶ 2, Ex. B; Carneghi Dec. ¶ 3. The Court should quash the
23 subpoena and sanction the Gearings for this clear misuse of the discovery process. Code Civ.
24 Proc. §§ 1987.2; 2023.010(a)-(c), 2023.030(a).
25 The Court should quash the subpoena for the additional reason that the attorney work
26 product doctrine protects reports prepared by an expert as a consultant until the expert is
27 designated as a witness. Code of Civ. Proc. § 2018.030; Shadow Traffic Network v. Superior
28 Court (1994) 24 Cal.App.4th 1067, 1079. An opposing party may seek disclosure only after the
6
Not. and Mot. to Quash Subpoena, and for Sanctions
Case No. 21-CIV-01560
1 expert is designated as a witness. Id. Where, as here, a consulting expert’s work product “relates
2 to the preparation by the attorney of his client’s case, it is a work product not subject to
3 discovery.” Scotsman Mfg. Co. v. Superior Court in and For Orange County (1966) 242
4 Cal.App.2d 527, 51 (trial court order compelling disclosure of consultant report was an abuse of
5 discretion where it was unsettled whether consultant would testify).
6 The Gearings refused the City’s proposal to set a date for disclosure and exchange of
7 expert information and reports and then immediately attempted to subpoena the appraiser who
8 provided the City’s initial valuation of the Property. Sigman Dec. ¶ 2. They cannot have it both
9 ways. The Court should quash the subpoena and require that the Gearings reimburse the City’s
10 cost to address their misuse of the discovery process.
11 IV. The Court should award sanctions for defendants’ unjustified subpoena.
12 The City requests that the Court award the amount of the reasonable expenses incurred in
13 making this motion to quash pursuant to Code of Civil Procedure section 1987.1, including
14 $3,357.90 in reasonable attorneys’ fees for time and expenses incurred on City’s Motion and
15 supporting documents. Code Civ. Proc. §§ 1987.2; 2023.010(a)-(c), 2023.030(a). The City has
16 incurred 9.9 hours of associate time billed at a rate of $249 per hour and 3.1 hours of partner
17 time billed at a rate of $288 per hour in its efforts to first ask the Gearings to withdraw the
18 subpoena and then prepare this motion and the supporting documentation. Sigman Dec. ¶ 5.
19 These hours do not include the cost of counsel’s time to prepare any reply or for a hearing on the
20 motion.
21 CONCLUSION
22 The Court should grant the City’s motion and quash the subpoena.
23 DATED: May 11, 2022 SHUTE, MIHALY & WEINBERGER LLP
24
25 By:
SARAH H. SIGMAN
26
Attorneys for Plaintiff
27
CITY OF HALF MOON BAY
28 1503725.2
7
Not. and Mot. to Quash Subpoena, and for Sanctions
Case No. 21-CIV-01560
Preview
[Exempt From Filing Fee Government Code § 6103] 1 ANDREW W. SCHWARTZ (State Bar No. 87699) SARAH H. SIGMAN (State Bar No. 260924) 2 BENJAMIN GONZALEZ (State Bar No. 325853) SHUTE, MIHALY & WEINBERGER LLP 3 396 Hayes Street San Francisco, California 94102 4 Telephone: (415) 552-7272 Facsimile: (415) 552-5816 5 schwartz@smwlaw.com sigman@smwlaw.com 6 bgonzalez@smwlaw.com 7 Attorneys for Plaintiff CITY OF HALF MOON BAY 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN MATEO, NORTHERN BRANCH 11 CITY OF HALF MOON BAY, Case No. 21-CIV-01560 12 Plaintiff, NOTICE OF MOTION AND MOTION TO QUASH SUBPOENA AND FOR 13 v. SANCTIONS: MEMORANDUM OF POINTS AND AUTHORITIES 14 THOMAS J. GEARING; DANIEL K. GEARING; DOES 1 through 50, APNs: 056-096-240, 056-096-480, 056-127-030, 15 inclusive; and all persons unknown 056-127-040, 056-128-090, and 056-125-210 claiming an interest in the property, 16 Date: July 28, 2022 Defendants. Time: 2:00 p.m. 17 THOMAS J. GEARING and DANIEL Assigned for All Purposes to: 18 K. GEARING, Hon. Danny Y. Chou, Dept. 22 19 Cross-Complainants, Action Filed: March 23, 2021 Trial Date: None set 20 v. Filed Concurrently with City's Notice Of Motion 21 CITY OF HALF MOON BAY, and And Motion To Quash Subpoena, And For ROES 1 through 100, inclusive, Sanctions; Declaration Of Christopher Carneghi 22 Cross-Defendant. 23 24 25 26 27 28 Not. and Mot. to Quash Subpoena, and for Sanctions Case No. 21-CIV-01560 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE THAT on July 28, 2022, at 2:00 p.m., in Department 22 of the 3 above-entitled court, located at 1050 Mission Road, South San Francisco, California 94080, 4 plaintiff City of Half Moon Bay (“City”) will move the Court to quash the subpoena that 5 defendants Thomas and Daniel Gearing (“the Gearings”) delivered to the business address of the 6 City’s expert appraiser, Christopher Carneghi. The City further seeks sanctions for its cost to 7 quash this meritless subpoena. 8 This motion is made under Code of Civil Procedure Section 1987.1 on the grounds that 9 defendants’ subpoena has not been properly served, provide insufficient time to respond, and 10 seeks information that is wholly privileged and unavailable to Defendants at this time. 11 This motion to quash is based on this Notice and Motion, the Memorandum of Points and 12 Authorities below, the Declarations of Christopher Carneghi and Sarah H. Sigman filed 13 concurrently herewith (“Carneghi Dec.” and “Sigman Dec.,” respectively), on all pleadings, 14 papers, and records on file in these actions, and on such further argument and evidence as may 15 be presented at or before the time of hearing on this motion. 16 MEMORANDUM OF POINTS AND AUTHORITIES 17 The City is in the process of condemning six undeveloped parcels that the Gearings own 18 within the West of Railroad area in Half Moon Bay, California (collectively, “the Property”). 19 Starting in December 2020, the City appraised the Property, made an offer to purchase it, and 20 then enacted a Resolution of Necessity authorizing this action, all in compliance with 21 California’s Eminent Domain Law. The Gearings moved unsuccessfully to stay the City’s action 22 while they pursued claims in federal court for alleged violation of their rights to substantive due 23 process and equal protection and for uncompensated taking of the Property (together, the 24 “federal claims”). 25 After this Court rejected the Gearing’s request for a stay and the federal court granted the 26 City’s request that it abstain from deciding the federal claims while the City’s eminent domain 27 action proceeds, the Gearings filed a Cross-Complaint in the City’s action, adding both their 28 federal claims and similar claims under the California Constitution, in addition to a claim for 2 Not. and Mot. to Quash Subpoena, and for Sanctions Case No. 21-CIV-01560 1 precondemnation damages. This Court sustained the City’s demurrer to the Gearings’ claims for 2 violation of equal protection and due process rights and for uncompensated takings under state 3 law on February 24, 2022. Thus, only the City’s eminent domain action and the Gearings’ 4 federal claims and claim for precondemnation damages remain. 5 The Court has not yet set a trial date for this matter, and so the parties have not demanded 6 the exchange of expert information much less completed that exchange or otherwise designated 7 testifying expert witnesses. See Code Civ. Proc. § 1258.210 (demand for expert exchange within 8 10 days of trial setting), 1258.220 (expert exchange 90 days before trial in eminent domain 9 action or as agreed by the parties). 1 In fact, the City contacted counsel for the Gearings on 10 March 31, 2022 to suggest an early exchange of expert information and reports to facilitate 11 resolution of any legal and evidentiary disputes that might arise from different assumptions 12 relevant to the parties’ valuations (see Code Civ. Proc. § 1260.040), but counsel for the Gearings 13 refused. Sigman Dec. ¶ 2, Exs. A-B. 14 Instead, the Gearings sought to subpoena documents from the City’s appraiser. On May 15 9, 2022, the Gearings delivered a business records subpoena to the office of Mr. Carneghi, who 16 provided the appraisal that supported the City’s offer to purchase the Property pursuant to 17 Government Code section 7267.2 and its deposit of just compensation pursuant to Code of Civil 18 Procedure section 1255.020. Carneghi Dec. ¶ 2. Mr. Carneghi was not in his office when the 19 process server attempted to deliver the subpoena, though he later contacted that individual and 20 suggested that he leave the subpoena at Mr. Carneghi’s office. Id. ¶ 3. 2 Id. The subpoena 21 requires production of documents on May 20, 2022, only 11 days after it was delivered. Id. ¶ 3, 22 Ex. A. 23 The Gearings’ subpoena is premature and wholly inappropriate, even if they had 24 25 1 Any effort by the Gearings to justify discovery from Mr. Carneghi based on their federal claims fails for the same reason that, even under general discovery procedures rather than those 26 specific to condemnation, the parties have not yet demanded or exchanged expert discovery. See Code Civ. Proc. § 2034.210 et seq (procedures for demand and provision of expert discovery 27 through simultaneous exchange after setting of the initial trial date). 2 Note that the individual delivering the subpoena did not complete the attached proof of service, 28 implicitly acknowledging that the delivery was deficient. Carneghi Dec.., Ex.A. 3 Not. and Mot. to Quash Subpoena, and for Sanctions Case No. 21-CIV-01560 1 completed the mandatory personal service on Mr. Carneghi and allowed sufficient time for the 2 requested production. The City contacted counsel for the Gearings on May 10, 2022, requesting 3 withdrawal of the subpoena to avoid the cost of this Motion. Sigman Dec. ¶ 3, Ex. C. It received 4 no response. Id. ¶ 4. Accordingly, the City now asks the Court to quash the subpoena and order 5 that the Gearings reimburse the City’s cost to address this inappropriate use of a discovery tool. 6 Code Civ. Proc. §§ 1987.2; 2023.010(a)-(c), 2023.030(a). 7 I. The City’s Motion to Quash is timely filed, and urgent. 8 This motion is timely filed. A motion to quash is typically filed before the time identified 9 for production, although the Court has the authority to consider the motion even if it is brought 10 after the date for production. In re R.R. (2010) 187 Cal.App.4th 1264, 1278. A motion to quash 11 must be “reasonably made.” Code of Civ. Proc. § 1987.1(a); Lee v. Swansboro Country Prop. 12 Owners Ass’n (2007) 151 Cal.App.4th 575, 583 (motion to quash subpoena reasonably made 13 when filed one week before the scheduled hearing, when the subpoena had been issued more 14 than a month before the hearing).) Here, the subpoena requests production of documents on May 15 20, 2022. It was delivered to Mr. Carneghi’s office on May 9, 2022, providing less than the 16 minimum 15 days to respond required by statute. Carneghi Dec. ¶ 3, Ex. A; Code Civ. Proc. § 17 2020.410(c). Accordingly, this motion to quash is reasonably and timely filed. 18 II. The Court should quash the Subpoena for lack of personal service. 19 Parties must serve subpoenas personally, including those for business records. Code Civ. 20 Proc. § 2020.220; see also Naser v. Lakeridge Athletic Club (2014) 227 Cal.App.4th 571, 578 21 (“obtaining business records through a deposition subpoena is a “deposition” within the plain 22 meaning of the Civil Discovery Act”). The Gearings did not do so here. Instead a process server 23 left the subpoena for Mr. Carneghi at his office. Carneghi Dec. ¶ 3. The Court should quash the 24 subpoena on this basis alone. 25 III. Defendants’ Subpoena seeks only privileged information. 26 Defendants’ subpoena seeks not only Mr. Carneghi’s notes, analysis, and work product 27 related to the Property and this case, but also all documents and communications related to five 28 other properties. Carneghi Dec., Ex. A (Attachment 3). Any expert discovery in this case is 4 Not. and Mot. to Quash Subpoena, and for Sanctions Case No. 21-CIV-01560 1 premature, and discovery of Mr. Carneghi’s work related to other properties is both irrelevant to 2 this action and protected by privilege. See Mack v. Superior Court In and For Sacramento 3 County (1968) 259 Cal.App.2d 7, 11 (appraisal privileged until author designated to testify); 4 Swartzman v. Superior Court (1964) 231 Cal.App.2d 195, 204 (same). 5 The Code of Civil Procedure prohibits discovery from experts that have not been 6 properly designated as expert witnesses. Code Civ. Proc. § 2034.210(b) (procedure for expert 7 designation). Such premature discovery would violate the statutory directive for mutual, 8 simultaneous disclosure. Id. § 2034.260 (method of mutual exchange); see also Swartzman, 231 9 Cal.App.2d at 204 (“The rules of discovery contemplate two-way disclosure.”). Section 10 2034.210 makes clear that discovery of a designated expert retained by a party can occur only 11 “after the setting of the initial trial date for the action,” which has not happened in this matter. 12 Moreover, if a party retains an expert solely as a consulting expert, the attorney-client 13 privilege applies to communications made by the client or the attorney to the expert in order for 14 the expert to properly advise counsel. DeLuca v. State Fish Co., Inc. (2013) 217 Cal.App.4th 15 671, 688. The attorney-client privilege applies to communications with an expert “to whom 16 disclosure is reasonably necessary for the transmission of the information or the accomplishment 17 of the purpose for which the lawyer is consulted.” Evid. Code § 952. Courts have held 18 repeatedly that this includes communications with and work performed by a consulting expert. 19 DeLuca, 217 Cal.App.4th at 688; Swartzman, 231 Cal.App.2d at 204; Roush v. Seagate 20 Technology LLC (2007) 150 Cal.App.4th 210, 225. 21 The mere fact that a consulting expert may serve as a testifying witness does not allow 22 discovery of their consultation and work product. Courts have drawn a “bright line at the point 23 where it becomes reasonably certain that the expert will testify—holding that the attorney-client 24 privilege and work product protection apply prior to that point, but not subsequent to it.” 25 DeLuca, 217 Cal.App.4th at 688. 26 The Eminent Domain Law expressly excludes the initial appraisal that the condemning 27 agency must conduct as part of its preliminary steps toward acquisition from evidence and 28 prohibits defendants from calling that appraiser as a witness. Code Civ. Proc. § 1255.060. The 5 Not. and Mot. to Quash Subpoena, and for Sanctions Case No. 21-CIV-01560 1 agency has no obligation to rely on the same appraiser or analysis at trial. Id. Accordingly, the 2 City’s use of Mr. Carneghi’s preliminary valuation does not alter the fact that the City has not 3 designated Mr. Carneghi as a testifying witness or waived any privileges that protect his work. 4 In Swartzman, the court approved an order prohibiting the deposition of an undesignated 5 appraiser prior to the prescribed mutual exchange of designated witness data. 231 Cal.App.2d at 6 204. The court held that “no good cause was shown for the taking of the deposition” of a 7 “potential expert witness in advance of the exchange of appraisal data” where the party seeking 8 discovery refused offers of mutual exchange of data. Id. The court thus affirmed that 9 “[c]onsultation between expert and counsel may appropriately be given broad immunity from 10 discovery, both as to expert and as to counsel, because none of the expert’s opinion . . . is 11 relevant evidence in the case.” Id. at 202. Indeed, the opinion of the consulting expert “will 12 remain wholly irrelevant and immaterial as evidence until the expert is called as a witness on the 13 trial and shown to be qualified to give competent opinion testimony.” Id. at 203. When a party 14 has designated an expert witness, “then his opinion has become a factor in the cause.” Id. 15 Here, the City proposed to counsel for the Gearings that the parties should schedule the 16 expert exchange now, well before trial, because the parties have already identified substantial 17 differences in their approaches to valuation of the Property that will likely require motion 18 practice. Sigman Dec. ¶ 2, Ex. A.; see also Code Civ. Proc. §1260.040 (providing procedure to 19 resolve “evidentiary or other legal issue affecting the determination of compensation” well 20 before trial). Similarly to the defendant in Swartzman, 231 Cal.App.2d at 204, counsel for the 21 Gearings rejected the City’s proposed mutual exchange and instead attempted to unilaterally 22 subpoena Mr. Carneghi. Sigman Dec. ¶ 2, Ex. B; Carneghi Dec. ¶ 3. The Court should quash the 23 subpoena and sanction the Gearings for this clear misuse of the discovery process. Code Civ. 24 Proc. §§ 1987.2; 2023.010(a)-(c), 2023.030(a). 25 The Court should quash the subpoena for the additional reason that the attorney work 26 product doctrine protects reports prepared by an expert as a consultant until the expert is 27 designated as a witness. Code of Civ. Proc. § 2018.030; Shadow Traffic Network v. Superior 28 Court (1994) 24 Cal.App.4th 1067, 1079. An opposing party may seek disclosure only after the 6 Not. and Mot. to Quash Subpoena, and for Sanctions Case No. 21-CIV-01560 1 expert is designated as a witness. Id. Where, as here, a consulting expert’s work product “relates 2 to the preparation by the attorney of his client’s case, it is a work product not subject to 3 discovery.” Scotsman Mfg. Co. v. Superior Court in and For Orange County (1966) 242 4 Cal.App.2d 527, 51 (trial court order compelling disclosure of consultant report was an abuse of 5 discretion where it was unsettled whether consultant would testify). 6 The Gearings refused the City’s proposal to set a date for disclosure and exchange of 7 expert information and reports and then immediately attempted to subpoena the appraiser who 8 provided the City’s initial valuation of the Property. Sigman Dec. ¶ 2. They cannot have it both 9 ways. The Court should quash the subpoena and require that the Gearings reimburse the City’s 10 cost to address their misuse of the discovery process. 11 IV. The Court should award sanctions for defendants’ unjustified subpoena. 12 The City requests that the Court award the amount of the reasonable expenses incurred in 13 making this motion to quash pursuant to Code of Civil Procedure section 1987.1, including 14 $3,357.90 in reasonable attorneys’ fees for time and expenses incurred on City’s Motion and 15 supporting documents. Code Civ. Proc. §§ 1987.2; 2023.010(a)-(c), 2023.030(a). The City has 16 incurred 9.9 hours of associate time billed at a rate of $249 per hour and 3.1 hours of partner 17 time billed at a rate of $288 per hour in its efforts to first ask the Gearings to withdraw the 18 subpoena and then prepare this motion and the supporting documentation. Sigman Dec. ¶ 5. 19 These hours do not include the cost of counsel’s time to prepare any reply or for a hearing on the 20 motion. 21 CONCLUSION 22 The Court should grant the City’s motion and quash the subpoena. 23 DATED: May 11, 2022 SHUTE, MIHALY & WEINBERGER LLP 24 25 By: SARAH H. SIGMAN 26 Attorneys for Plaintiff 27 CITY OF HALF MOON BAY 28 1503725.2 7 Not. and Mot. to Quash Subpoena, and for Sanctions Case No. 21-CIV-01560