Judge: Cherol J. Nellon, Case: 23STCV16164, Date: 2023-12-20 Tentative Ruling

Case Number: 23STCV16164    Hearing Date: December 20, 2023    Dept: 14

Case Background

Plaintiffs allege that, for a period of roughly 10 years between 2002 and 2012, a teacher at two elementary schools was allowed to become their serial abuser, despite multiple complaints lodged with the schools’ principal.

            On July 11, 2023, Plaintiffs filed their Complaint for (1) Breach of Written Contract, (2) Breach of the Implied Covenant, (3) Promissory Fraud, (4) Civil Conspiracy, (5) Negligent Misrepresentation, (6) Conversion, and (7) Securities Fraud against Defendants Carson Films & Productions, LLC (“Film”), Robert E. Carson (“Carson”), Ronald M. Lebow (“Lebow”), Quae Michelle Johnson aka Michelle Johnson (“Johnson”), and DOES 1-100. The first and second causes of action are asserted against Defendant Film, only. The third cause of action is asserted against Defendants Film and Carson, only. The fifth cause of action is asserted against Defendant Lebow, only.

Defendants Film and Carson were served on August 4, 2023 (Proofs of Service filed August 11, 2023) but has neither responded nor been defaulted. Defendant Johnson has not yet been served.

            No trial date has yet been set.

Demurrer

Defendant Lebow demurs to the entire Complaint on the ground that these claims cannot be maintained against him because defending himself would require violating attorney-client privilege.

Decision

            Defendant Lebow’s Request for Judicial Notice is DENIED. The court is able to review the operative complaint on file in this case; there is no need to make it the subject of a request for judicial notice.

            The demurrer is OVERRULED. Defendant Lebow is to answer within 10 days.

Discussion

            Defendant Lebow bases his demurrer primarily on two authorities: Solin v. O’Melveny & Myers, LLP (2001) 89 Cal.App.4^th 451 and McDermott, Will & Emery v. Superior Court (2000) 83 Cal.App.4^th 378. It is not yet clear that the rules contained in these decisions apply to this case.

            The panel in Solin described the issue as follows:

“Plaintiff Daniel R. Solin, an attorney, retained O'Melveny & Myers, LLP (O'Melveny) to obtain advice regarding Solin's representation of Edith Reich and Brigitte R. Jossem (together referred to as the Clients). In that regard, Solin disclosed certain privileged and confidential information of the Clients (the Secrets), which implicated them in criminal activities.

Solin sued O'Melveny for professional malpractice, alleging that O'Melveny failed to advise him of pertinent legal authority regarding one of the matters on which he retained the law firm. The Clients intervened, seeking dismissal of the suit to avoid the disclosure of the Secrets. The trial court determined that O'Melveny could not effectively defend the action without disclosing the confidences of the Clients, and dismissed the lawsuit.” Solin, supra, 89 Cal.App.4^th at 453-454.

The Court of Appeal affirmed the dismissal, after a lengthy review of the discovery in the case, the evidence likely to be presented at trial, and the objections that would have to be made to that evidence. Id. at 456-467. The thrust of the court’s reasoning was that Solin could not sue O’Melveny for advice that O’Melveny gave him about his clients, and then assert the clients’ privilege to prevent O’Melveny from explaining that advice to a jury. Id.

            In McDermott, the factual setup was a bit different. A healthcare company had hired a large law firm to represent its interests in a merger. McDermott, supra, 83 Cal.App.4^th at 381. Certain minority shareholders of the healthcare company filed a derivative suit against the firm for malpractice in the implementation of the agreement. Id. The Court of Appeal ruled that the minority shareholders could not file a malpractice action against the corporation’s lawyer. Id. at 383. Under normal circumstances, filing a malpractice case automatically waives privilege, but minority shareholders cannot waive a corporation’s privilege because they do not hold it. Id. at 383-385.

            This case does not fall under the rule of McDermott because this is not a shareholder’s derivative action. And it does not clearly fall under the rule of Solin for several reasons. First, the plaintiff in Solin was the attorney, and the parties moving for dismissal were the clients who held the privilege. Neither of those things is true here. But second, and more importantly, Solin itself expressly warns the court against deciding these issues on demurrer.

            The panel in Solin, citing to the Supreme Court’s decision in General Dynamics Corp. v. Superior Court (1994) 7 Cal.4^th 1164, emphasized that their decision did not occur on demurrer, but after discovery had made clear the nature and shape of the testimony that would be offered at trial. Solin, supra, 89 Cal.App.4^th at 459-461. While privilege may well be asserted as an objection in discovery on this case, the court is obliged to evaluate the objection and see what shape discovery takes before dismissing the case out of hand.

Conclusion