Coito v. Super. Ct. 3/4/10 CA5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: F057690

Case Date: 06/10/2010

Preview:Filed 3/4/10

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
DEBRA COITO, Individually and as Successor in Interest, etc., Petitioner, v. THE SUPERIOR COURT OF STANISLAUS COUNTY, Respondent; STATE OF CALIFORNIA, Real Party in Interest.

F057690 (Super. Ct. No. 624500)

OPINION

ORIGINAL PROCEEDINGS in mandate. William A. Mayhew, Judge. Law Offices of Carcione, Cattermole, Dolinski, Okimoto, Stucky, Ukshini, Markowitz & Carcione, Joseph W. Carcione, Jr., Gary W. Dolinski, and Neal A. Markowitz for Petitioner. No appearance for Respondent. Edmund G. Brown, Jr., Attorney General, James M. Schiavenza, Assistant Attorney General, Steven M. Gevercer and Peter A. Meshot, Deputy Attorneys General, for Real Party in Interest.

We consider the question whether the statement of a witness, taken in writing or otherwise recorded verbatim, by an attorney or the attorney`s representative, is entitled to the protection of the California work-product privilege. We will follow the weight of SEE CONCURRING AND DISSENTING OPINION

authority and find such statements not protected and therefore available through discovery. The superior court here followed contrary language from Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214 (Nacht & Lewis). We will grant the requested writ of mandate and direct the superior court to enter an order granting the discovery at issue. FACTS AND PROCEEDINGS Jeremy Wilson, the 13-year-old son of petitioner Debra Coito, died in a drowning incident in the Tuolumne River in Modesto, California, on March 9, 2007. Petitioner filed her complaint for wrongful death thereafter. She named various defendants, including the State of California. The Department of Water Resources is the agency defending for the state, represented by the Attorney General of California. The action is currently before this court on a petition for writ of mandate filed by petitioner. The state is real party in interest. At the time of the drowning, six other juveniles were present at the site and witnessed what occurred. Allegations have been made of criminal conduct by all of the juveniles, including JeremyWilson, immediately preceding the drowning. On November 12, 2008, after codefendant City of Modesto had noticed the depositions of five of the six juvenile witnesses, counsel for the state sent two investigators, both special agents from the California Department of Justice, Bureau of Investigation, to interview and take recorded statements from four of the juveniles.1 Counsel for the state had, according to a declaration filed below in this matter, provided the investigator with questions [he] wanted answered. The juveniles` statements are each saved on a separate compact disk (CD). So is a memo prepared for the attorney for the state by one of the investigators, after conclusion of the interviews.

counsel points out that, at the time of the interviews, the juveniles` parents were not present, the agents were armed and wore badges, and the agents did not explain to the juveniles that the statements were being taken for a civil action, not a criminal matter.

1Petitioner`s

2.

On January 27, 2009, the City of Modesto`s deposition of one of the four interviewed witnesses commenced. Counsel for the state used the content of the witness`s recorded statement to examine him at the deposition. On February 5, 2009, petitioner served the state with supplemental interrogatories and document demands. (Code Civ. Proc.,2

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