Judge Kerry Bensinger, Case Number: 24STCV33753, Date: 2025-03-27 Tentative Ruling

CASE: The City of Los Angeles v. Greater Los Angeles Zoo Association, et al.

PLAINTIFF’S MOTION TO QUASH DEFENDANT GLAZA’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS ISSUED TO RENEE HOWDESHELL AND REQUEST FOR ATTORNEY’S FEES OF $7,280

On December 20, 2024, plaintiff The City of Los Angeles (the “City”) filed a complaint against defendant Greater Los Angeles Zoo Association (“GLAZA”) or (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing; (3) breach of fiduciary duty, (4) conversion, and (5) declaratory relief. As alleged in the complaint, GLAZA is a nonprofit corporation which was formed for the exclusive purpose of assisting and aiding the City in establishing, developing, operating, caring for, and maintaining the Los Angeles Zoo and Botanical Gardens (“Zoo”). In 2024, the parties executed the Interim Agreement to ensure the continuity of critical programs and services while the City completes a public bidding process for the long-term management of the Zoo. The City alleges GLAZA committed ten breaches of the Interim Agreement.

Under the Interim Agreement, the City has a right to inspect GLAZA’s books and records as they relate to Zoo funds held by GLAZA. “All documents, books, and accounting records for Zoo funds held by GLAZA shall be open for inspection by the City upon request and with reasonable prior notice, at any reasonable time during the term of the Agreement.” (Interim Agreement, § 5(C).) On November 8, 2024, the City notified GLAZA that it was exercising this contractual right and requested an initial meeting to discuss the scope, timing, and process for such an inspection. In advance of the meeting, and after the filing of this action, Plaintiff’s counsel retained Renee Howdeshell, a certified public accountant and certified fraud examiner, to assist Plaintiff’s counsel’s evaluation of the case between the City and GLAZA. The scope of Ms. Howdeshell’s work included an inspection and analysis of GLAZA’s books and records.

The virtual meeting took place on February 7, 2025. Plaintiff’s counsel (the Los Angeles City Attorney’s Office) and Ms. Howdeshell were present. GLAZA maintains that the meeting was primarily conducted by Ms. Howdeshell who over the course of half an hour asked questions about GLAZA’s accounting systems, records, and other logistical issues. Defense counsel attempted to question Ms. Howdeshell about her relationship with the Los Angeles City Attorney’s Office, her communication with the City Attorney’s Office, and what records she possessed and reviewed before the meeting. Plaintiff’s counsel rebuffed Defense counsel’s attempt to treat Ms. Howdeshell as a deposition witness.

On February 10, 2025, GLAZA served Ms. Howdeshell with a deposition subpoena for production of business records. The subpoena demands production on five categories of documents. The City objected to the subpoena on the grounds the documents sought were protected by the attorney-client privilege and work-product doctrine because the City had retained Ms. Howdeshell as a consultant and had not designated her as an expert witness. The City requested GLAZA to withdraw the subpoena, to no avail.

On February 24, 2025, the City filed this motion to quash the subpoena. The City requests sanctions against GLAZA.

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 such as unreasonable violations of the right of privacy. (Code Civ. Proc. (CCP) § 1987.1.)

The court in its discretion may award the amount of the reasonable expenses incurred in

making or opposing the motion, including reasonable attorney's fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive. (CCP § 1987.2, subd. (a).)

GLAZA’s subpoena seeks communications and documents between Ms. Howdeshell and the City. The City seeks to quash the subpoena because Ms. Howdeshell is a retained consultant and thus, those communications and documents are protected by the attorney-client privilege and work product doctrine.

The court agrees. “If the expert is solely retained as a consulting expert, the attorney-client privilege applies to communications made by the client or the attorney to the expert in order for the expert to properly advise counsel.” (DeLuca v. State Fish Co. (2013) 217 Cal.App.4th 671, 688.) “[T]he attorney-client privilege applies to communications ‘to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted’ (Evid. Code, § 952); this clearly includes communications to a consulting expert. [Citations.] Similarly, a consulting expert’s report, prepared at the attorney’s request and with the purpose of assisting the attorney in trial preparation, constitutes work product [citation], entitled to conditional protection and barred from discovery in the absence of good cause. [Citation.]” (Id., citations omitted.)

Here, Plaintiff’s counsel states that it retained Ms. Howdeshell after filing this action “to assist with the [Los Angeles City Attorney’s] Office’s evaluation of the case between the City and GLAZA, which includes an inspection and analysis of GLAZA’s books and records pursuant to the City’s contractual rights. The engagement agreement contains detailed descriptions of the work the Office hired Ms. Howdeshell to perform.” (Son Decl., ¶ 3.) The City makes clear that Ms. Howdeshell was engaged to assist the City in this litigation. Ms. Howdeshell’s documents and communications with the City are protected by the attorney-client privilege and work product doctrine.

In opposition, GLAZA argues City showing does not support the proposition that Ms. Howdeshell was engaged for the purposes of assisting the City in this litigation as opposed to carrying out a regular business function. Contrary to GLAZA’s contention, however, the City sets forth the reason for retaining Ms. Howdeshell and the timing supports and corroborates The City’s position. (See Son Decl., ¶ 3.) The City is entitled to an order quashing the subpoena.

Given the court’s ruling, the court finds sanctions are warranted against GLAZA. Accordingly, sanctions are imposed against GLAZA in the sum of $1,360, consisting of two hours at Plaintiff’s counsel hourly rate.

The request for sanctions is GRANTED. Sanctions are imposed against GLAZA in the sum of $1,360 to be paid to Plaintiff, by and through its counsel, within 30 days of this order.

Kerry Bensinger

Judge of the Superior Court