Judge: Mary H. Strobel, Case: 21STCV38060, Date: 2022-09-20 Tentative Ruling

Case Number: 21STCV38060    Hearing Date: September 20, 2022    Dept: 82

             Petitioner California Fair Plan Association (“Petitioner”) moves to compel further responses to special interrogatories (“SROGs”) and requests for admissions (“RFAs”) served on Respondent Ricardo Lara, the Insurance Commissioner of the State of California (“Respondent” or “Commissioner”). 

Relevant Procedural History

            On October 14, 2021, Petitioner filed its verified petition for writ of mandate pursuant to CCP section 1085.  Respondent has answered the petition. 

            On February 10, 2022, the court denied Petitioner’s noticed motion for a preliminary injunction.  The court’s minute order summarizes the procedural history of this case and related case 19STCP05434 and also the contents of Respondent’s Order No. 2021-2 and Amended Order No. 2021-2, the orders that led to this writ action.  (Minute Order dated 2/10/22 at 1-6.)  That discussion is not repeated here but is incorporated by reference.

            In this writ action, Petitioner has propounded 54 SROGs, 22 RFAs, 10 requests for production (“RFPs”), and form interrogatory (“FI”) 17.1.  (Keith Decl. ¶ 3.)

            On June 17, 2022, Petitioner filed this motion to compel further responses to certain SROGs and RFAs. 

            On September 6, 2022, Respondent filed an opposition to the motion.  On September 13, 2022, Petitioner filed a reply.

Summary of Applicable Law

For a motion to compel further, “the propounding party must demonstrate that the responses were incomplete, inadequate or evasive, or that the responding party asserted objections that are either without merit or too general.”  (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403; see CCP § 2031.310(a).)  The moving party must submit a meet and confer declaration that complies with CCP section 2016.040.  (CCP §§ 2030.300(b), 2031.310(b).)

 “Ordinarily, discovery is permitted in writ proceedings only when calculated to produce evidence that will be admissible under the applicable standard of review, rather than under the liberal subject matter relevance test in general civil litigation. “  (Rutter, Administrative Law, Pretrial and Trial of Mandamus Cases, ¶ 20:140 [emphasis in original].) 

Analysis

Meet and Confer

“A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”  (CCP § 2016.040.) 

Here, the parties met and conferred at length regarding the issues presented by the motion.  The parties also participated in an informal discovery conference with the court.  (See Kook Decl. ¶¶ 4-11, Exh. E-I.)  The parties satisfied the meet and confer obligation of section 2016.040. 

Relevance and Mental Process Principle

Respondent has objected to all of the SROGs and RFAs at issue based on relevance and the mental process privilege, among other objections.  (See Pet. Sep. St.)  As discussed below, Petitioner does not show that these objections are “either without merit or too general.”  (Sinaiko, supra, 148 Cal.App.4th at  403.)  Respondent also persuasively defends these objections in opposition. 

“[T]he [mental process] principle is less a privilege than the ‘more fundamental, historically enshrined legal principle that precludes any judicially authorized inquiry into the subjective motives or mental processes of legislators.’ (County of Los Angeles v. Superior Court, supra, 13 Cal.3d at p. 726, 119 Cal.Rptr. 631, 532 P.2d 495.) ….[¶] In this state, evidence that relates to the mental processes of individual legislators is ‘irrelevant to the judicial task.’ [Citation.] Consequently, such evidence is ‘not the proper subject of discovery requests.”  (Sutter’s Place v. Sup. Ct. (2008) 161 Cal.App.4th 1370, 1377-78.)

The mental process principle applies to all forms of discovery requests and may bar discovery directed at non-legislators.  The mental process privilege also applies when a court is “reviewing the decision of an administrative agency.”  (Board of Administration v. Sup.Ct. (1975) 50 Cal.App.3d 314, 319-320, further discussed infra.)   “So long as the inquiry goes to the subjective motivations of legislators, it is prohibited, no matter to whom the inquiry is directed.”  (City of Santa Cruz v. Superior Court (1995) 40 Cal.App.4th 1146, 1153.)  For instance, in Board of Supervisors v. Sup. Ct. (1995) 32 Cal.App.4th 1616, the Court of Appeal held that a municipal judges association “may not seek to circumvent the prohibition against discovery of Board members' thought processes by deposing others-such as Sheriff Block-about communications with Board members.”  (Id. at 1626; see also Labor & Workforce Development Agency v. Sup.Ct. (2018) 19 Cal.App.5th 12, 30-31 [disclosure of identities of third-parties involved in confidential, predecisional communications with agency was functional equivalent of revealing substance or director of agency’s judgment and mental processes].)

Contrary to Petitioner’s assertion, the mental process privilege is well established in California and U.S. law.  (See Reply 11-12 and fn. 7.)  “As early as 1855, Chief Justice Murray declared in an opinion for this court: ‘I know of no authority this Court possesses to inquire into the motives of the Legislature in the passage of a law; on the contrary, it has been uniformly held that they could not be inquired into.’ (People v. Bigler (1855) 5 Cal. 23, 26.) This doctrine has been reiterated in literally scores of California decisions…. As Justice Field wrote for the United States Supreme Court in Soon Hing v. Crowley (1885) 113 U.S. 703, 710—711, 5 S.Ct. 730, 734, 28 L.Ed. 1145: ‘(T)he rule is general, with reference to the enactments of all legislative bodies, that the courts cannot inquire into the motives of the legislators in passing them, except as they may be disclosed on the face of the acts, or inferrible from their operation, considered with reference to the condition of the country and existing legislation.”  (County of Los Angeles v. Sup.Ct. (1975) 13 Cal.3d 721, 726.) 

Also contrary to Petitioner’s assertion (Reply 11-12 and fn. 7), the clear weight of authority shows that the mental process privilege is “absolute” when discovery seeks to inquire into the mental process, physical process, or motives of a legislator in enacting a law.  The privilege is not the same as the deliberative process privilege, or the privilege under Evidence Code section 1040, and requires no balancing of interests.  (See e.g. County of Los Angeles, supra, 13 Cal.3d at 726 [“we need not resolve these conflicting claims as to the proper application of section 1040, for we believe that the discovery order in the instant case implicates a more fundamental, historically enshrined legal principle that precludes any judicially authorized inquiry into the subjective motives or mental processes of legislators.”]; see Id. at 725-732 [writ of prohibition issued against deposition questions, without any balancing of interests]; City of Santa Cruz, supra, 40 Cal.App.4th at [holding that discovery was “clearly forbidden by the aforementioned authorities” and not analyzing any balance of interests].) 

Marylander v. Sup. Ct. (2000) 81 Cal. App. 4th 1119, 1127, cited by Petitioner, is inapposite.  (Reply 11-12.)  In that case, the petitioner was a defendant in a civil action alleging misrepresentation, concealment, and breach of fiduciary duty related to Triad Healthcare, a corporation in bankruptcy and for which petitioner was a former officer.  The petitioner served a deposition subpoena seeking production of memoranda prepared by a state agency and director to the governor “apparently addressing Triad’s financial problems.”  (Id. at 1122.)  Unlike Petitioner’s discovery here, which Respondent challenges on relevance grounds, there was no dispute in Marylander that the discovery of the state memoranda was relevant to the litigation.  (Id. at 1124 [“OSHPD does not dispute the relevance of the requested documents”].)   Nor was there any indication from the Court of Appeal’s decision that the petitioner sought to inquire into the motives or mental or physical processes of the Governor or a legislator.   The Court of Appeal did not analyze the mental process privilege.  “‘It is axiomatic that language in a judicial opinion is to be understood in accordance with the facts and issues before the court. An opinion is not authority for propositions not considered.’”  (People v. Knoller (2007) 41 Cal.4th 139, 154-55.)

            With this legal framework in mind, the court analyzes Respondent’s relevance and mental process objections as applied to the specific SROGs and RFAs at issue.

Identity of Persons Involved in Drafting the Orders, the Decision to Issue the Orders, or Factual Determinations Made in the Orders

SROGs 44, 45, 47, and 48 seek “the identity(ies) of each person involved in the decision to issue the Orders and their drafting.” (Mot. 15.) SROGs 5, 10, 16, 21, 26, and 32 seek “the identification of persons involved in the factual determinations made in the Orders.” (Id. at 13; see also Kook Decl. Exh. A.)

The petition challenges Respondent’s Order No. 2021-2 and Amended Order No. 2021-2 (hereafter “Orders”).  Order No. 2021-2 requires Petitioner to begin to offer the FAIR Plan HO Policy, which would include certain liability coverages related to the insured property (e.g., premises liability, incidental worker’s compensation).  (Pet. ¶ 28, Exh. A.)  Amended Order No. 2021-2 expressly incorporates the court’s findings and conclusions in its decision and all evidence relied upon by the Commissioner in the first action (19STCP05434); and adds a recital providing additional reasoning for the order.  This recital states: “WHEREAS, requiring the FAIR Plan to expand its dwelling fire policy offerings to include the additional coverages ordered hereby is necessary to carry out the purposes of Chapter 9, because, among other things: (1) the availability of an expanded FAIR Plan homeowners policy addresses market deficiencies by making additional homeowners coverages more affordable and available in wildfire exposed areas in California; and (2) requiring FAIR Plan to provide an expanded policy will be more consistent with consumers’ expectations, thereby increasing stability in the property insurance market.”  (RJN in support of motion for preliminary injunction, Exh. 9.) 

The petition alleges that the Orders “violate[] the FAIR Plan Act in that the FAIR Plan may only sell ‘basic property insurance” coverage.’”  (Pet. ¶ 30.)  Petitioner alleges that “Order 2021-2 also fails to comply with the view recently expressed by the trial court in the Second Lara Action.”  (Id. ¶ 31.)  “Further, issuance of Order 2021-2 constituted an abuse of discretion as it is unsupported by any stated underlying findings, evidence supporting those findings and rationale justifying the demanded changes to the FAIR Plan’s plan of operation.”  (Id. ¶ 32; see also Id. ¶¶ 33-37.)  “Moreover, Order 2021-2 is irrational in that it is geographically unlimited ….”  (Id. ¶ 38.)  “Further, Order 2021-2’s requirement that the FAIR Plan offer a ‘Homeowners’ Policy’ and submit a rate and form filing for the Homeowners’ Policy no later than April 7, 2022 is arbitrary and capricious.”  (Id. ¶ 39.) 

Respondent’s Order No. 2021-2 is dated September 24, 2021, and is signed by Respondent.  (Pet. Exh. A.)  Respondent’s Amended Order No. 2021-2 is dated November 19, 2021, and is signed by Respondent.  (RJN in support of motion for preliminary injunction, Exh. 9.)  Petitioner does not allege that the Orders were not actually signed by Respondent or that someone usurped his authority by issuing the Orders without his knowledge or consent.  To the extent Petitioner seeks a statement that Respondent signed and issued the orders, those facts are not contested in the Petitioner, and the requested discovery is irrelevant to any issue pleaded in the petition and not reasonably calculated to lead to the discovery of admissible evidence.

As made clear by the motion and reply, Petitioner has propounded SROGs 44, 45, 47, and 48 and SROGs 5, 10, 16, 21, 26, and 32 to determine what persons, other than Respondent, were involved in drafting the Orders and in the decisionmaking related to the Orders.  Plainly, such inquiry invades the mental and physical processes of Respondent, who issued the Orders in a quasi-legislative capacity.  Discovery for that  purpose is irrelevant.  As further discussed below, no other purpose of the discovery has been shown by Petitioner. 

Board of Administration v. Superior Court, supra, is instructive here. There, the City of Santa Monica (City) sought, through RFAs to the Board of Administration (Board), “to determine how Board and its individual members arrived at [a] decision and what documents, reports and records were considered by Board and its individual members in arriving at that decision.” (50 Cal.App.3d at 318.) “In effect City contend[ed] that Board and its members merely adopted the decision prepared by its executive officer prior to the oral hearing” and “that Board did not exercise its own independent judgment but merely ‘rubber stamped’ the decision of its executive officer.” (Id. at pp. 318-319.) The Court of Appeal held that this discovery was irrelevant and forbidden by the mental process privilege, stating:

If the reasons for a decision are irrelevant and immaterial … , we think the physical process as disclosed by facts outside the record by which the result was reached is even more so…. We are not here concerned with any question of a corrupt decision—one which was the product of bribery or other improper influence. We are here concerned with a question of whether or not the officials charged with making a decision did or did not consider certain documents, whether they formed their opinion before they heard oral argument, whether they physically wrote their opinion or whether it was written for them by their executive officer. [¶] ‘It is presumed that official duty has been regularly performed. ...’ (Evid. Code, § 664.)…. Although this presumption is disputable …, it may not be disputed by proof that the Board's trained personnel advised and assisted the Board (by drafting a proposed decision or otherwise) if the Board itself makes the actual decision. 

(Id. at 320.)

This same reasoning applies here.  Petitioner has not challenged the validity of the Orders based on undue influence, corruption, or bribery.  Rather, the petition challenges the Orders as unlawful and as an abuse of discretion under the FAIR Plan Act.  (Pet. ¶¶ 30-39, 41.)  Those legal claims will be adjudicated based on the face of the order, the “objective effect of the legislative terms,” and other “objective” proof.  (City of Santa Cruz, supra, 40 Cal.App.4th at 1146.)  The identities of persons that may have advised or assisted Respondent in researching or drafting the Orders, or who may have advised Respondent in his decisionmaking, are irrelevant to the allegations.  

            Petitioner’s arguments are not persuasive.  Petitioner contends that “identities of the persons involved in reaching the factual determinations set forth in the Orders is basic fact discovery as these individuals are witnesses that will have information relevant to this matter.”  (Mot. 13.)  Petitioner does not elaborate on this legal conclusion.  As presented, Petitioner assumes the truth of its underlying premise that witnesses will have relevant information.  Within the framework discussed above, in which the motives, mental processes, and physical processes of Respondent are irrelevant, Petitioner does not identify any possible relevance of the identities of persons, other than Respondent, that were involved in drafting or making the factual determinations set forth in the Orders.  Respondent has already identified those persons who may have knowledge of facts that support the determinations in the Orders.  (Kook Decl. Exh. C, SROGs 3, 8, 14, 19, 24, 30.)  Respondent has also provided extensive information in response to SROG 1 regarding the facts that support the determinations made in the Order.  (See Oppo. 9 and Kook Decl. Exh. C.)  Further discovery seeking to uncover the degree to which Respondent relied on Department staff or other persons in preparing the Orders and deciding to issue the Orders is irrelevant because it goes to the internal mental process of the legislator. 

Petitioner also argues that “disclosure of the identity of witnesses involved in the reaching of factual determinations must be disclosed in the first instance to determine the applicability of any of the privileges asserted.”  (Mot. 13-14.)  This reasoning also assumes the truth of Petitioner’s underlying premise of relevance.  Petitioner does not explain how the identification of such persons is relevant to any specific privilege at issue in this litigation.  The argument is unsupported. 

Relatedly, Petitioner asserts that “Lara is not identified anywhere in any communication or document withheld from production” in Respondent’s privilege log.  (Mot. 14.)  Petitioner speculates that other persons must have been “delegated responsibility with reaching the factual determinations set forth in the Orders.”  (Ibid.)  As discussed, Petitioner has not alleged in the petition that the Orders were not actually signed, authorized, and issued by Respondent.  Accordingly, Petitioner’s discovery about who may have advised Respondent is irrelevant to the court’s review of the legislative decision that was made.  Moreover, not all communications regarding the Orders would be written and thus would not necessarily be reflected in a privilege log. Also, the privilege log does refer to communications to Respondent, including: “intended briefing[s] of Commissioner;” “document(s) to be reviewed by Commissioner;” and drafts of and revisions to “briefing[s] to Commissioner.”  (Kook Decl. Exh. I.) 

Finally, Petitioner argues that Respondent cannot show “the existence of a public interest in nondisclosure that ‘clearly outweighs the public interest in disclosure’.”  (Mot. 14; see also Reply 11-13.)  As discussed above, the balancing of interests from the deliberative process privilege, and also from Evidence Code section 1040, do not apply to the mental process privilege.  Because SROGs 44, 45, 47, and 48 and SROGs 5, 10, 16, 21, 26, and 32 seek to discover the mental and physical processes by which Respondent issued the Orders, and because no other relevant purpose of the discovery has been shown, this discovery is irrelevant and barred by the mental process privilege. 

Respondents’ objections to this discovery based on relevance and mental process privilege are sustained.  Because these objections are dispositive, the court need not analyze the validity of any other objections.  The motion is DENIED as to SROGs 44, 45, 47, and 48 and SROGs 5, 10, 16, 21, 26, and 32.

Specific Dates on Which Respondent Made the Determinations Stated in the Orders

SROGs 4, 9, 15, 20, 25, and 31 seek “[t]he specific dates on which Lara made the determinations that were stated in in the Orders.”  (Mot. 2; see also Kook Decl. Exh. A.)

In meet and confer, Petitioner stated that these SROGs “seek the specific dates on which the Commissioner made the factual determinations” at issue, and that “the term ‘determined’ refers to any of the determinations, conclusions, decisions or findings expressly made by the Commissioner in the challenged Orders.”  (Kook Decl. Exh. E at 5-6 and Exh. H at 3.)  In the motion, Petitioner has modified that position, stating that these interrogatories “were intentionally crafted without specifying whether the determination was made by Lara.”  (Mot. 17.)  The distinction is not material to the court’s analysis.

Petitioner’s discovery seeking the dates on which Respondent made the determinations stated in the Orders is clearly irrelevant and barred by the mental process principle.  Case law supports this conclusion.  (See Board of Supervisors v. Superior Court, supra, 32 Cal.App.4th at 1627 [“the attempt to determine when a supervisor decided to vote a particular way is bound up in why that decision was reached; once again, the inquiry goes to the thought processes, which are prohibited”]; City of Santa Cruz, supra, 40 Cal.App.4th at 1157 [“what [petitioner] is truly attempting to discover is when the council members decided to designate the greenbelt properties as agricultural and whether they maintained open minds at the time of the public hearings. Such inquiry is clearly forbidden by [the mental process principle].”]) 

To the extent SROGs 4, 9, 15, 20, 25, and 31 seek the dates on which “proxies” for Respondent made determinations stated in the Orders (see Mot. 16:26-27), the discovery is also barred.  As discussed above, Petitioner does not allege, or submit any evidence, that the Orders were not actually signed by Respondent or that someone usurped his authority by issuing the Orders without his knowledge or consent.  Thus, Petitioner’s inquiry into whether some other persons may have assisted Respondent in drafting the Orders or in the decisionmaking process impermissibly invades the mental and physical processes of the legislator. 

Petitioner’s arguments are not persuasive.   (Mot. 16-18; Reply 8-10.)  Petitioner states that “[w]hen factual determinations in the Order were made will assist in determining what documents, if any, were available or could have been considered by Lara.”  (Mot. 17.)  Relatedly, Petitioner states that “[k]nowing when determinations were made will also help assess the applicability of the deliberative process privilege since post-decision discussions would not reflect the same degree of public policy concern of nondisclosure.”  (Ibid.)  However, as discussed, the Orders state the dates they were issued by Respondent.  Petitioner cites no authority that any other dates are relevant to the deliberative process privilege or any issue raised in the petition. 

Petitioner does not persuasively distinguish Board of Supervisors, supra or City of Santa Cruz, supra.  (Reply 9-10.)  In both cases, the Court of Appeal held that discovery seeking to discovery when the legislators “arrived at their decision” was barred by the mental process principle.  (See City of Santa Cruz, supra, 40 Cal.App.4th at 1156-57.) 

Petitioner’s arguments concerning City of Fairfield v. Sup.Ct. (1975) 14 Cal.3d 768 also are unpersuasive.  (Reply 9-10.)  City of Fairfield was cited as controlling authority in both Board of Supervisors, supra and City of Santa Cruz, supra.  As discussed by the Court of Appeal, City of Fairfield held that an inquiry into when a legislator subjectively “arrived” at a legislative decision is irrelevant.   (See City of Santa Cruz, supra, 40 Cal.App.4th at 1156-57 [discussing Fairfield].)  Quoting a prior case, our high Court stated: “[I]t would be contrary to the basic principles of a free society to disqualify from service in the popular assembly those who had made pre-election commitments of policy on issues involved in the performance of their sworn ... duties.”  (Fairfield, supra, 14 Cal.3d at 781.)  While Fairfield involved a claim of bias, the Court’s reasoning also applies to discovery – like Petitioner’s – seeking to discover when a legislator subjectively or internally arrived at a decision to enact a law.

Respondents’ objections to this discovery based on relevance and mental process privilege are sustained.  The motion is DENIED as to SROGs 4, 9, 15, 20, 25, and 31.

Admissions that Respondent Has Conducted No Analysis, Investigation, Fact-Finding, or Study

RFAs 12 and 19 seek admissions that Respondent “has conducted no analysis, investigation, fact-finding and/or study to consider ‘whether or not requiring the FAIR Plan to offer the expanded ‘Homeowners’ Policy’ … will create consumer confusion’ or [whether it] ‘should only be sold in wildfire exposed areas in California.’”  (Mot. 2.)

These RFAs unmistakably seek to discover Respondent’s internal mental and physical processes that led to issuance of the Orders.  Such inquiry is irrelevant.  Even if Respondent or Department staff did not perform any internal analysis or investigation, “[t]he judiciary confines evaluation of a statute to the terms of the legislation itself and will eschew inquiry into what motivated or influenced those who voted on the legislation.”  (Board of Supervisors, supra, 32 Cal.App.4th at 1623.)

Petitioner develops no persuasive argument to the contrary as applied to these RFAs.  (See Mot. 20-21; Reply 6:1-9 and fn. 4.)  Petitioner argues that RFAs 12 and 19 are “relevant to the issue of whether Lara considered all relevant factors in connection with determining whether to issue the Orders.”  (Mot 20.) Petitioner cites authority that “an abuse of discretion occurs if an agency did not apply or properly interpret the governing law or consider all relevant factors, or if there was no rational connection between the relevant factors, the choice made, and the purposes of the enabling statute or regulation.”  (Manderson-Saleh v. Regents v. University of California (2021) 60 Cal.App.5th 674, 693.)  Manderson-Saleh does not stand for the proposition that the mental and physical processes of a legislator are relevant to the court’s review in a petition for writ of traditional mandate.  The Orders will be reviewed based on the face of the orders, the “objective effect of the legislative terms,” and other “objective” proof.  (City of Santa Cruz, supra, 40 Cal.App.4th at 1146.)  Petitioner will not be precluded from arguing that on the basis of objective evidence, the decision was arbitrary or capricious.

Petitioner argues that Respondent has not engaged in the balancing of interests required by the deliberative process privilege or Evidence Code section 1040 for RFAs 12 and 19.  However, because the relevance and mental process objections are valid, Petitioner may not pursue the discovery regardless of the balancing of interests of the deliberative process privilege or Evidence Code section 1040.

Respondents’ objections to this discovery based on relevance and mental process privilege are sustained.  The motion is DENIED as to RFAs 12 and 19. 

Discovery about Communications in Which the Determinations in the Order were Made

SROGs 33-42 “seek a description of ‘each COMMUNICATION, including but not limited to evidentiary hearings, calls or meetings, in which’ the various factual determinations and conclusions set forth in the Orders were determined” and the “identification of documents memorializing those communications,” and RFAs 7-11 seek “admissions that there are no [such] communications.” (Mot. 2, 18; see also Kook Decl. Exh. A, B.)

Petitioner does not allege, or submit any evidence, that any public evidentiary or other hearings were held in connection with Respondent’s issuance of the Orders.  Indeed, Petitioner states that “[t]here is no administrative record in this matter.”  (Reply 10.) The petition is brought under CCP section 1085, not section 1094.5, which implies that no public evidentiary hearing was required by law.  (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848.)  The Orders themselves do not refer to any evidentiary or other public hearings.  Therefore, these SROGs and RFAs necessarily seek descriptions of internal communications of Respondent and/or Department staff regarding determinations made in the Orders.  For the same reasons discussed at length above, such discovery concerning the internal mental and physical processes of Respondent “is ‘irrelevant to the judicial task.’.”  (Sutter’s Place, supra, 161 Cal.App.4th at 1377-78.) 

Petitioner’s arguments regarding the relevance of SROGs 33-42 and RFAs 7-11 are not persuasive.  Petitioner argues that this discovery is relevant because Petitioner “seeks a description of documents in which the various factual determinations and conclusions set forth in the Orders were determined or admissions that no such documents exist.”  (Mot. 19.)  This argument is simply a restatement of the requests made in SROGs 33-42 and RFAs 7-11.  Petitioner does not explain how such discovery is relevant to any issue pleaded in the petition.  As discussed, the Orders will be judged based on the face of the orders, the “objective effect of the legislative terms,” and other “objective” proof.  (City of Santa Cruz, supra, 40 Cal.App.4th at 1146.)  Internal communications of Respondent and/or Department staff about determinations made in the Orders are not relevant to the validity or invalidity of the Orders.

Respondents’ objections to this discovery based on relevance and mental process privilege are sustained.  The motion is DENIED as to SROGs 33-42 and RFAs 7-11.

Attorney-Client Privilege

As discussed, Respondents’ objections to the discovery at issue based on relevance and mental process privilege are sustained.  Because these objections are dispositive, the court need not analyze the validity of any other objections.  Nonetheless, for purposes of oral argument, the court comments on Respondent’s contention that “[m]uch of the disputed discovery is also barred by the attorney-client privilege, to the extent the Commissioner’s attorneys were involved in the process leading to issuance of the Order.”  (Oppo. 18.) 

The attorney-client privilege allows the client or the client’s attorney “to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer ....”  (Evid. Code § 954.)  “For purposes of the attorney-client privilege, ‘client’ is defined in relevant part as ‘a person who, directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity ....’ (Evid. Code, § 951, italics added.) ‘Confidential communication’ protected by the privilege refers to ‘information transmitted between a client and his or her lawyer in the course of that relationship and in confidence’ by confidential means. (Evid. Code, § 952.)”  (Uber Technologies, Inc. v. Google LLC (2018) 27 Cal.App.5th 953, 966.)   

“The burden of showing preliminary facts necessary to support the privilege lies with the party claiming it,” i.e. a communication made in the course of an attorney-client relationship.  (Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 123-124.)  “Once that party establishes facts necessary to support a prima facie claim of privilege, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply.” (Costco Wholesale Corp. v. Sup.Ct. (2009) 47 Cal.4th 725, 733; see also Evid. Code § 917.)  The trial court may not order review of documents in camera to make a determination as to the attorney-client privilege.  (Costco, supra at 740 and Evid. Code § 915(a).) 

“The attorney-client privilege covers all forms of communication, including the transmission of specific documents….   [T]he privilege applies not only to communications made in anticipation of litigation, but also to legal advice when no litigation is threatened.”  (Wellpoint, supra, 59 Cal.App.4th at 119.)  California courts have held that “the ‘privilege extends to communications which are intended to be confidential, if they are made to attorneys, to family members, business associates, or agents of the party or his attorneys on matters of joint concern, when disclosure of the communication is reasonably necessary to further the interest of the litigant.’”  (Zurich, supra, 155 Cal.App.4th at 1495-96 [italics omitted].) 

            Here, to the extent Respondent’s attorneys were involved in the process leading to issuance of the Orders, confidential communications with such attorneys about the Orders are likely barred from disclosure pursuant to the attorney-client privilege.  Some of Petitioner’s discovery could require Respondent to disclose information about the contents of such confidential communications with attorneys.  (See SROGs 33-42, 5, 10, 16, 21, 26, 32, 44, 45, 47, 48.)  Thus, as examples, SROGs 5 and 33 ask Respondent to identify persons and communications related to the determination that “requiring the FAIR Plan to expand its dwelling fire policy offerings to include the additional coverages ordered hereby is necessary to carry out the purposes of Chapter 9” as stated on page 2 of Amended Order no. 2021-2.  These SROGs themselves provide the communications’ contents.  Therefore, to the extent attorneys were involved in those communications, the attorney-client privilege would bar that discovery. 

Other Objections

Because the motion must be denied on other grounds, the court does not rule on Respondent’s remaining objections, including the deliberative process privilege and official information privilege. 

Form Interrogatory 17.1

The notice of motion does not seek an order compelling further responses to FI 17.1.  (Mot. 2-3.) However, Petitioner has filed a proposed order seeking an order compelling further responses to FI 17.1.  (See also Mot. 21:21-23 [requesting order as to FI 17.1].)  FI 17.1 asks for information concerning any denied RFA.  To the extent Petitioner seeks an order with respect to FI 17.1, the court denies the motion for the same reasons discussed above as to the RFAs at issue. 

Conclusion

            The motion is DENIED.