Judge: Gregory Keosian, Case: 21STCV16688, Date: 2023-05-18 Tentative Ruling

Case Number: 21STCV16688    Hearing Date: May 18, 2023    Dept: 61

Plaintiff Emanuel Brown’s Motion to Quash Subpoena to Dennis Ardi is GRANTED in part, as to all documents sought in the subpoena save invoices, bills, and receipts for costs and expenses, which may be redacted for privileged information.

Plaintiff to provide notice.

I.                MOTION TO QUASH DEPOSITION SUBPOENA

“If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc. § 1987.1, subd. (a).) A party may bring a motion under this section. (Code Civ. Proc. § 1987.1, subd. (b)(1).)

Plaintiff Emanuel Brown (Plaintiff) moves to quash a subpoena for documents issued to Dennis Ardi, who was Plaintiff’s attorney in the underlying action that is the subject of this case. Plaintiff’s present action, one for declaratory relief, contends that Defendants McNicholas & McNicholas, Douglas D. Winter, and Matthew S. McNicholas (Defendants), despite unjustifiably withdrawing from Plaintiff’s representation in the underlying action, now seek a portion of the $1.6 million settlement obtained by Plaintiff’s successive counsel. This court on March 17, 2022, denied Plaintiff’s motion for summary judgment on this point, reasoning that Defendants could seek a portion of the settlement on the theory that the ultimate offer obtained was based on their efforts, which had yielded a settlement offer of $1.5 million while they represented Plaintiff. (See 3/17/22 Order.)

The present subpoena is directed to Dennis Ardi, the attorney who represented Plaintiff after Defendants withdrew, and who ultimately obtained the settlement that is the subject of this action. The subpoena seeks from Ardi: (1) Plaintiff’s fee agreement in the underlying case; (2) documents memorializing time spent on the underlying case, including invoices, bills, correspondence, and memoranda; (3) documents of work performed in the underlying case; (4) and documents reflecting costs, expenses, and disbursements incurred by Ardi in the underlying case. (Motion Exh. A.) Plaintiff argues that these requests seek documents protected by the attorney-client privilege and work-product doctrine. (Motion at pp. 11–15.)

Defendants argues that Plaintiff has implicitly waived the privilege by bringing this action, and thereby placing at issue which attorney’s labor produced the settlement agreement that Plaintiff ultimately accepted. (Opposition at p. 6.) Defendants argue that the underlying fee agreement and documents of costs between must be disclosed in order to determine whether Plaintiff’s ultimate monetary relief was greater or lesser than that which would have been obtained by Defendants, in light of contingency fees and expenses. (Opposition at pp. 6–7, 9.) Defendants seek Ardi’s correspondence, memoranda, drafts, and notes, in order to cross-examine Ardi concerning the work he performed upon the case, already evidenced in time records which Ardi produced at deposition. (Opposition at pp. 7–9.) Defendants also argue that Plaintiff’s motion does not include a separate statement, and was not served upon Ardi. (Motion at pp. 4–5.)

The attorney-client privilege protects “confidential communication[s] between client and lawyer.” (Evid. Code, § 954.) And any “writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.” (Code Civ. Proc. § 2018.030, subd. (a).) These privileges are not absolute. An implied waiver “occurs where the plaintiff has placed in issue a communication which goes to the heart of the claim in controversy.” (Chicago Title Ins. Co. v. Superior Court (1985) 174 Cal.App.3d 1142, 1149.)

Defendants have not shown a waiver of either privilege as broad as they claim. A waiver of privilege may occur when the plaintiff’s case places at issue their attorney’s communications to them, or their attorney’s mental state — such as when they plead wrongdoing by another party that “confused plaintiff’s attorney.” (Chicago Title Ins., supra, 174 Cal.App.3d at p. 1150.) Waiver may be found when the plaintiff’s claim for fraud, and the essential element of justifiable reliance, requires discovery of facts known and disclosed by plaintiff’s attorney to plaintiff. (Id. at p. 1154.)

Plaintiff has not waived the privilege as to the documents requested in this subpoena, because Plaintiff has not put the communications or documents requested at issue in this litigation, and the documents sought are not “essential for a fair adjudication of the action.” (Southern Cal. Gas Co. v. Public Utilities Com. (1990) 50 Cal.3d 31, 40.) First, Defendants do not show how the documents sought are necessary to assess any element of a claim made by Plaintiff. The documents are rather sought for their relevance to Defendants’ claims, namely the claim that Defendants are entitled to a portion of Plaintiff’s ultimate $1.6 million settlement because that settlement is substantially similar to the offer they obtained during their representation. (Opposition at pp. 5–6; see Aetna Casualty & Surety Co. v. Superior Court (1984) 153 Cal.App.3d 467, 477 [holding that insurer did not waive privilege as to attorney communications by bringing declaratory relief action against insured, to which insured responded by bringing a claim for insurance bad faith].) The documents are relevant to support Defendants on issues tendered by Defendants.

The evidence sought, meanwhile, is not essential for the proof of those claims. Although Defendants contend they need the documents to assess Plaintiff’s ultimate recovery from the latter settlement, Plaintiff’s ultimate recovery from the settlement, as well as the “cumulative totals” of Ardi’s fees, are not facts in themselves privileged, which can only be obtained through privileged documents. (Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 298.) And although the work performed by Ardi may be relevant to Defendants’ claim of unjust enrichment, Defendants may assess the work performed by questioning Ardi and Plaintiff as to that fact, and may compare the actual terms of the settlement ultimately obtained to the offer that they allege.

However, even though Defendants have not demonstrated that Plaintiff has waived the attorney-client or work-product privileges, not all of the documents sought are subject to privilege. Specifically, invoices, bills, and cost receipts sought under Requests No. 2–4 are not categorically privileged, and may be discovered once the litigation in which they are incurred has been concluded. (Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 297–298.) But these documents too may be redacted insofar as they contain privileged matter, such as descriptions of the work performed for the client. (See People v. Kelly (2020) 59 Cal.App.5th 1172, 1187.)

Accordingly, Plaintiff’s motion to quash is GRANTED in part, as to all documents sought in the subpoena save invoices, bills, and receipts for costs and expenses, which may be redacted for privileged information.[1]