Judge: H. Jay Ford, III, Case: 22SMCV01135, Date: 2023-01-24 Tentative Ruling

Case Number: 22SMCV01135    Hearing Date: January 24, 2023    Dept: O

Case Name:  Ekoh Investment, Inc. v. Bestland, Inc., et al.

SUBJECT:                MOTION TO COMPEL PRODUCTION OF DOCUMENTS BY GREGORY S. KIM OF THE LAW OFFICE OF GREGORY S. KIM AND REQUEST FOR SANCTIONS AGAINST THE LAW OFFICE OF GREGORY S. KIM IN THE AMOUNT OF $3920

MOVING PARTY:  Plaintiff Ekoh Investment, Inc.

RESP. PARTY:        Non-party Deponent Gregory S. Kim

TENTATIVE RULING

            Plaintiff’s Motion to Compel Production of Documents by Gregory S. Kim of the Law Office of Gregory S. Kim and Request for Sanctions against the Law Office of Gregory S. Kim in the Amount of $3920 is GRANTED as to the request to compel and DENIED as to sanctions. 

            Plaintiff moves to compel documents from Gregory S. Kim in response to RFP Nos. 1-18 contained in the deposition subpoena served on Kim on 8-29-22.  The requested documents pertain to Kim’s joint representation of Bestland and Ekoh in the prior Graymar Action.  Kim has refused to produce the documents based on attorney-client privilege.

            “In general, when a party asserts the attorney-client privilege, that party has the burden of showing the preliminary facts necessary to support the privilege.  The necessary preliminary facts include the existence of the attorney-client relationship at the time the confidential communication was made.  After this burden is met, or where there is no dispute concerning the preliminary facts, the burden shifts to the party opposing the privilege to show either the claimed privilege does not apply, an exception exists, or there has been an express or implied waiver.”  Venture Law Group v. Superior Court (2004) 118 Cal.App.4th 96, 102.

            Kim asserts the attorney-client privilege as grounds to refuse production.  However, Bestland has not asserted attorney-client privilege, nor has Kim submitted any evidence that Bestland has voiced any objection to production.  Kim testifies that Bestland did not respond to Kim’s inquiries regarding production.  See Opposition, Dec. of E. Kim, ¶6.

            In addition, based on the undisputed facts, the exception under EC §962 applies.  EC §962 provides, “[w]here two or more clients have retained or consulted a lawyer upon a matter of common interest, none of them, nor the successor in interest of any of them, may claim a privilege under this article as to a communication made in the course of that relationship when such communication is offered in a civil proceeding between one of such clients (or his successor in interest) and another of such clients (or his successor in interest).”

            It is undisputed that Kim jointly represented Bestland and Ekoh in the Graymar Action.  See Opposition, Dec. of G. Kim, ¶2.  It is also undisputed that Bestland and Ekoh signed a “Notice of Waiver of Conflict of Interest” as a condition of the joint representation.  See Dec. of E. Oh, ¶6.  Kim does not address this Notice, nor does he deny that the Notice was signed by Bestland.

            The Notice summarizes Evidence Code §962 and the inapplicability of the attorney-client privilege to parties who were jointly represented by counsel in an action.  The Notice expressly informed both Bestland and Ekoh that their communications with Kim were not confidential as between the two of them:  “[N]either one of you shall assume that anything you say to us will be held in confidence from the other as we will have a legal and ethical duty to tell the other anything that one of you tells us in confidence; but only if it has any relevancy at all to the legal issues at hand. In fact, failure to reveal such information to the other would be a violation of the joint attorney-client relationship.  In other words, your conversations with us are not privileged as between the two of you.  If you want independent advice or wish to be able to discuss matters in complete privacy, you both will need separate counsel.”  See Dec. of E. Oh, Ex. K.

            Kim fails to establish the inapplicability of EC §962.  Kim cites American Mutual Liability Ins. Co. v. Supr. Ct. (1974) 38 Cal.App.3d 579, 595 for the proposition that a joint client may not waive the privilege for another joint client.  However, American Mutual Liabilty Ins. Co. did not involve a civil action by one jointly represented client against the other joint client.  The documents sought in American Mutual Liability Ins. Co. were sought by a third party to the joint client relationship.  See American Mutual Liability Ins. Co., supra, 38 Cal.App.3d at 582-583 (joint client insurer who paid for defense of joint client insured opposed production of documents from joint attorney in malpractice action by patient against insured).  American Mutual Liability Ins. Co. stands for the unremarkable proposition that “where two or more persons engage an attorney to represent all of them, the privilege is waived as between the parties, but it remains as to strangers.”  Nowell v. Supr. Ct. (1963) 223 Cal.App.2d 652, 657, fn 4. 

            To protect against disclosure to “strangers,” Kim’s production should be subject to a confidentiality protective order precluding review of any documents by persons outside of Plaintiff Ekoh and Plaintiff’s counsel.  Plaintiff’s action names parties other than Bestland.  Plaintiff to submit a proposed protective order in conformity with this order.

            Kim’s concerns are well-founded as to strangers.  However, Kim had no basis to claim attorney-client privilege as to Ekoh, a joint client with Bestland.  Plaintiff’s Motion to Compel is GRANTED.  However, Kim acted with substantial justification in opposing production.  The request for sanctions is therefore DENIED.