People ex rel. Department of Public Works v. Donovan

SALSMAN, J. This is an appeal by the defendant property owner from a judgment entered on a jury verdict in an eminent domain action fixing $13,500 as the fair market value of appellant’s property.

Appellant first contends that the trial court committed reversible error in quashing a subpoena issued to obtain the appraisal report of Leonard Doyle, one of respondent’s appraisers. The facts that give rise to this claim of error are these: This is the second trial concerning the fair market value of appellant’s property. Prior to the first trial Leonard Doyle was hired by respondent to appraise the subject property and to make a report. The report was prepared and transmitted to counsel for respondent. Leonard Doyle testified as an expert appraiser at the first trial and valued appellant’s property at $15,000. The jury returned a verdict of $13,500, the exact amount of the verdict in the second trial. Leonard Doyle also testified in the second trial. In his later testimony he valued appellant's property at $8,500. When asked the reason for the difference in his testimony at the two trials the witness stated in effect that it was due to a realization that access to the property was over an easement; that he had known of the easement when he made his report appraising the property at $15,000 prior to the first trial, but did not fully realize its importance. Appellant then demanded pro[347]duetion of the appraisal report made by the witness. When this was refused appellant sought to obtain the report by subpoena. On respondent's motion the trial court quashed the subpoena on the ground that the content of the appraiser’s report was protected by the attorney-client privilege and hence not subject to subpoena. In ruling upon the motion to quash, the trial judge cited and relied upon Mowry v. Superior Court, 202 Cal.App.2d 229, 241 [20 Cal.Rptr. 698], which at that time was the latest appellate pronouncement on the subject and fully supported the court’s ruling. (See also Rust v. Roberts, 171 Cal.App.2d 772, 776 [341 P.2d 46].) After trial of the ease we now consider, our Supreme Court decided Oceanside Union School Dist. v. Superior Court, 58 Cal.2d 180, 189 [23 Cal.Rptr. 375, 373 P.2d 439], and San Diego Professional Assn. v. Superior Court, 58 Cal.2d 194 [23 Cal.Rptr. 384, 373 P.2d 448]. In Oceanside, the court expressly held that the “attorney-client privilege does not protect either the facts obtained or the mental opinions and calculations of that type of expert who, like a real estate appraiser, does not pass on to the attorney information which emanated ‘from the client’ ”. In San Diego Professional the court expressly disapproved those portions of Mowry and Rust which declared that the report of an expert real estate appraiser made to an attorney is privileged as a matter of law. In this context then, the trial court’s ruling was error (cf. People ex rel. Dept. of Public Works v. Glen Arms Estate, Inc., 230 Cal.App.2d 841 [41 Cal.Rptr. 303]). The question remains, however, whether the error was prejudicial. We have concluded that, under the circumstances of this case, the error was not prejudicial.