FORWARD, INC. vs THE STATE OF CALIFORNIA, et al.

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver

23CV012125: FORWARD, INC. vs THE STATE OF CALIFORNIA, et al. 06/09/2026 Hearing on Motion to Compel Compliance with Third Party Subpoena to Daniel Kippen in Department 16D

and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING:

*** NOTICE: EFFECTIVE APRIL 13, 2026, THIS DEPARTMENT HAS MOVED TO THE TANI G. CANTIL-SAKAUYE COURTHOUSE LOCATED AT 500 G STREET IN SACRAMENTO, CA. ALL MOTIONS NOTICED FOR DEPARTMENT 53 WILL BE HEARD IN DEPARTMENT 16D OF THE NEW COURTHOUSE. ALL PAPERS FOR THIS DEPARTMENT MUST BE FILED AT THIS NEW LOCATION AND WILL NOT BE ACCEPTED AT THE HALL OF JUSTICE. ALL HEARINGS WILL TAKE PLACE AT THIS NEW LOCATION. PARTIES MAY CONTINUE TO APPEAR REMOTELY IN DEPARTMENT 16D UNLESS SPECIFICALLY ORDERED OTHERWISE. ***

Defendant/cross-complainant California Department of Corrections and Rehabilitation’s (“CDCR”) motion to compel third party Daniel Kippen’s compliance with the former’s deposition subpoena is GRANTED, as follows.

Both moving and opposing counsel failed to comply with CRC Rule 3.1110(b)(4).

Factual Background

Plaintiff Forward, Inc. commenced this action on 11/21/2023, asserting against defendant CDCR and others a cause of action under the Hazardous Substances Account Act (“HSAA”) as well as claims for equitable indemnity, equitable contribution, unjust enrichment and declaratory relief. The complaint generally alleges this is an action “to recover response costs and for damages, indemnity, equitable contribution and declaratory relief relating to groundwater contamination caused by the State of California and its departments” at several correctional facilities located in Stockton, California and adjacent to plaintiff’s own landfill. (Compl., ¶1.)

Plaintiff alleges it has been ordered to install “a groundwater extraction and treatment system” at these facilities because of a determination by the Central Valley Regional Water Quality Control Board (“Regional Board”) that plaintiff’s landfill has caused volatile organic compounds (“VOCs”) to contaminate groundwater underlying the facilities. (Id.) According to plaintiff, this determination is embodied in a 2017 Cleanup and Abatement Order (“2017 CAO”) issued by the Regional Board to plaintiff but “the main concentrations of VOCs at the State Facilities are not due to groundwater contamination

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV012125: FORWARD, INC. vs THE STATE OF CALIFORNIA, et al. 06/09/2026 Hearing on Motion to Compel Compliance with Third Party Subpoena to Daniel Kippen in Department 16D

caused by [plaintiff’s] Landfill.” (Id. (underline added for emphasis).)

Plaintiff maintains “the main concentrations of VOCs are present at the State Facilities due to releases caused by the Defendants, and it is the removal of this Defendantcaused contamination that will be the primary if not exclusive result of the Regional Board’s requirement for Plaintiff to implement a groundwater extraction and treatment system described in the 2017 CAO.” (Id.) Contending that “but for” the contamination caused by defendants, plaintiff would likely not have been required to install a groundwater extraction and treatment system and therefore, plaintiff now seeks to recover from defendants the costs for extracting and treating groundwater and in meeting any other requirements of the Regional Board to remove or remediate VOCs at defendants’ facilities. (Id.)

On 8/5/2024, defendant CDCR filed against plaintiff Forward, Inc. a cross-complaint for private and public nuisance, trespass and both declaratory and injunctive relief.

Trial is currently set for October 2027.

Moving Papers. According to CDCR’s moving papers, the Regional Board, “despite more than three decades of belief that Forward is the party responsible for contamination at CDCR’s property,” adopted on 7/10/2025 “without independent evidence or rationale” Forward’s litigation claims as its own and issued a Water Code 13267 Order requiring CDCR to investigate and submit a groundwater plume investigation workplan which evaluates the nature and extent of releases allegedly emanating from CDCR’s property.

Additionally, following a Public Records Act request, CDCR maintains that “Forward and the Regional Board have together maneuvered to shift Forward’s ongoing remediation burden onto CDCR, the very victim of Forward’s contamination” and that Mr. Kippen, a State Water Resources Control Board’s Office of Enforcement attorney who works for the Regional Board, is a “material witness in this case” by virtue of “his communications with Forward Inc.’s counsel, issuance of the 13267 Order, and Regional Board employees charged with regulatory oversight and enforcement authority over the contamination at issue in the underlying litigation.” In short, CDCR contends Mr.

Kippen’s “anticipated deposition testimony is highly relevant to the litigation and cannot be obtained from elsewhere other than by seeking his testimony,” but he has to date failed to comply with CDCR’s subpoena for his deposition.

Opposition. Attorney Kippen opposes, arguing that he “represents the Regional Board against the moving parties [sic] in a separate but related matter,” making him “opposing counsel” as to the moving parties and requiring them “to meet [sic] a test before the deposition can proceed.” (Opp., p.2:2-8.) In short, the opposition contends

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV012125: FORWARD, INC. vs THE STATE OF CALIFORNIA, et al. 06/09/2026 Hearing on Motion to Compel Compliance with Third Party Subpoena to Daniel Kippen in Department 16D

“Defendants cannot use this litigation against Forward Landfill as a vehicle to bypass the caselaw holding that depositions of opposing counsel are ‘presumptively improper, severely restricted, and require “extremely” good cause,’” citing Carehouse Convalescent Hospital v. Superior Court (2006) 143 Cal.App.4th 1558. (Id., at p.2:9- 12.) More specifically, the opposition primarily asserts that under this appellate precedent, depositions of opposing counsel are “presumptively improper and require extremely good cause including that the moving party show the information sought is not subject to a privilege, is not available from any other source, and is “crucial to this case.” (Id., at p.4:9-p.9:14.)

Reply. Defendant CDCR concedes that under the Carehouse decision, the deposition of opposing counsel is presumptively improper and requires showing of good cause but maintains that attorney Kippen “is not counsel of record in the instant litigation but rather a non-party attorney representing a non-party entity in a separate administrative proceeding,” rendering Carehouse’s rationale inapplicable to the instant motion. (Reply, p.2:9-15.) Regardless, attorney Kippen’s communications with plaintiff Forward’s counsel are not privileged, are “crucial to this litigation,” and cannot be obtained from any other source (since the deposition of plaintiff Forward’s own counsel is under Carehouse presumptively improper.

Additionally, while his failure to appear for deposition pursuant to CDCR’s subpoena “may not have waived privilege,” Mr. Kippen is not permitted to assert “a blanket objection to his deposition” but rather, he must appear for deposition and “assert objections based on privilege, if any, on a questionby-question basis.” (Id., at p.2:20-27.)

Discussion

As noted above, defendant CDCR now moves for an order compelling attorney Kippen to appear for deposition pursuant to the former’s deposition subpoena. The opposition on file primarily argues that this motion should be denied because attorney Kippen is “opposing counsel” in “a separate but related matter” (i.e., a petition for writ of mandate challenging the validity of the Regional Board’s 2025 order requiring CDCR to investigate and submit a groundwater plume investigation workplan) and that CDCR cannot satisfy any or all of the prerequisites set forth in Carehouse for deposing “opposing counsel.” In light of this specific argument advanced in opposition, the threshold question presented here is whether or not attorney Kippen is properly characterized as “opposing counsel” so as to invoke the protection afforded by the Carehouse decision.

For the reasons explained below, this Court rejects the opposition’s suggestion that attorney Kippen is “opposing counsel” whose deposition is subject to the limitations set forth in Carehouse.

The plaintiffs in Carehouse sued a skilled nursing facility for wrongful death and elder

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV012125: FORWARD, INC. vs THE STATE OF CALIFORNIA, et al. 06/09/2026 Hearing on Motion to Compel Compliance with Third Party Subpoena to Daniel Kippen in Department 16D

abuse. In response to the plaintiffs’ request for “the nursing hours per-patient-day ratio for each day of decedent’s residency,” the defendant stated it “did not maintain a log of its staffing ratios” and a response “would require preparation of a compilation, abstract, or summary, the burden of which would be substantially the same for propounding party.” (Carehouse Convalescent Hospital, supra, 143 Cal.App.4th at 1561.) The trial court granted the plaintiffs’ motion to compel the defendant to provide the responsive information and if necessary, by deposition of the defendant’s attorney:

“If Defendant’s Counsel has made independent decisions regarding the classification of certain employees of Defendant, she has placed herself in the position of being an expert witness, and plaintiff is entitled to depose her as an expert.” (Id., at 1562.)

The Court of Appeal reversed, explaining that “[t]he adversarial system of justice presumes that the attorneys for each side oppose one another, not depose one another” and the plaintiffs had “failed to make the requisite showing of ‘extremely’ good cause to overcome the presumption against taking the deposition of defense counsel.” (Id., at 1560.)

It is self-evident that Mr. Kippen is not “opposing counsel” for plaintiff Forward, Inc. in the present litigation. No such assertion is included in the opposing points & authorities or in attorney Kippen’s own declaration in opposition. In fact, this declaration specifically attests in Paragraphs 3-4 that Mr. Kippen is “an Attorney Supervisor in the Office of Enforcement at the State Water Resources Control Board” and in this capacity, he “represent[s] the nine regional water boards around the state, including the Central Valley Regional Water Quality Control Board, in water quality enforcement matters,” “counseling my clients about various approaches to enforcement under the Porter- Cologne Water Quality Control Act ” Moreover, the pleadings and filings in the case at bar unequivocally indicate plaintiff Forward, Inc. has since the outset been represented by the Law Offices of Thomas M.

Bruen in Walnut Creek and none of these pleadings or filings otherwise indicate that attorney Kippen is in anyway associated with the Law Offices of Thomas M. Bruen. As such, Mr. Kippen cannot be considered as “opposing counsel” in the present suit and thus, this Court can find no legitimate grounds on which to conclude that the Carehouse decision necessarily precludes the deposition of attorney Kippen in this case.

In light of the foregoing, the Court need not proceed further but it nevertheless does so in order to establish an additional reason why the opposition’s reliance on Carehouse is misplaced. While the opposition expressly asserts that attorney Kippen “represents the Regional Board against the moving parties [sic] in a separate but related matter” (i.e.,

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV012125: FORWARD, INC. vs THE STATE OF CALIFORNIA, et al. 06/09/2026 Hearing on Motion to Compel Compliance with Third Party Subpoena to Daniel Kippen in Department 16D

“a separate lawsuit [sic] initiated by Defendants challenging that Order [by the Regional Board]”) (Opp., p.2:2-8; p.7:26-p.8:2), the suggestion that Mr. Kippen is “opposing counsel” in this “separate but related” action is not borne out by the evidentiary record here. As discussed in the preceding paragraph, Mr. Kippen’s own declaration in opposition states that he is “an Attorney Supervisor in the Office of Enforcement at the State Water Resources Control Board” and “represent[s] the nine regional water boards around the state, including the Central Valley Regional Water Quality Control Board, in water quality enforcement matters,” “counseling my clients about various approaches to enforcement under the Porter-Cologne Water Quality Control Act ” (Kippen Decl., ¶¶3-4 (underline added for emphasis).)

Paragraphs 8-9 indicate that Mr. Kippen had “counseled the Regional Board regarding the issuance of the [Water Code §13267] Order” to CDCR, “such that they can weigh the technical evidence, with my legal advice, to decide on the best course of action.” These attestations by Mr. Kippen fail to persuade this Court that the former is properly characterized as “opposing counsel” in connection with either the Regional Board’s issuance of the Water Code §13267 order or the pending writ proceedings challenging the validity of such order so as to entitle him to invoke the narrow protection established by Carehouse for “opposing counsel.”

Because the opposition has failed to demonstrate that attorney Kippen is “opposing counsel” either in the present litigation or in the “separate but related” proceedings, the opposition’s reliance on the Carehouse decision is unavailing and fails to provide a valid ground on which the entirety of the present motion to compel may or must be denied.

Although not necessary for the disposition of this motion, the Court adds that the opposition has also failed to provide a sufficient foundational showing that all of the information sought by this deposition including but not limited to communications with counsel for plaintiff Forward, Inc. is independently privileged or otherwise protected from disclosure under existing law. As such, Mr. Kippen shall be ordered to appear for deposition but he (or more specifically, his counsel) remains free to assert specific, appropriate objections in response to individual questions as they are asked.

To the extent any issues arise from the ordered deposition, the Court reminds counsel that before filing any further discovery motion relating to the deposition, they are under California law including but not limited to Townsend v. Superior Court (1998) 61 Cal.App.4th 1431 obliged to engage in a legitimate, reasonable and good faith meetand-confer process, which “requires a serious effort at negotiation and informal resolution.” (Id., at 1438.) Moreover, such efforts must under the recently amended provisions of Code of Civil Procedure §2016.040(a) be conducted “either in person, by telephone, or by videoconference.” (Bold added for emphasis.) The Court will not hear or rule upon any additional motion pertaining to the deposition (or any other discovery motion in this case) without the parties’ demonstrating in detail that they have

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV012125: FORWARD, INC. vs THE STATE OF CALIFORNIA, et al. 06/09/2026 Hearing on Motion to Compel Compliance with Third Party Subpoena to Daniel Kippen in Department 16D

exhausted meet-and-confer efforts as required under law.

Objections to Evidence

The Court overrules defendant CDCR’s seven (7) written objections to evidence but adds that a different ruling on these objections would not alter the disposition of this motion.

Disposition

For the reasons explained above, defendant CDCR’s motion to compel third party Daniel Kippen’s compliance with the former’s deposition subpoena is GRANTED.

Attorney Kippen shall appear for deposition and produce the documents identified in the deposition subpoena on a mutually agreeable date no later than 7/10/2026 (unless defendant CDCR agrees to a later date memorialized in writing).

Neither side requested monetary sanctions and thus, none are awarded.

Moving party to provide notice of this ruling and file proof of service of same within five (5) court days.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)