Judge: Mark H. Epstein, Case: 19SMCV01619, Date: 2022-12-27 Tentative Ruling

The Court generally uploads tentative rulings the morning of the hearing.  Because of that, the parties cannot submit on the tentative the night before and not appear.  However, if after reviewing the tentative ruling ALL COUNSEL submit, they should tell the Court's judicial assistant when checking in and the Court will endeavor to either not hear the case in light of the submission or, if the Court believes that a hearing is still needed for some other reason, then the Court will be inclined to give priority.

In some cases, tentative rulings may be given by email the morning of the hearing rather than on the tentative ruling site.  Please check your email if you have not seen the tentative.  The email is generally sent to the persons who have signed up for a remote hearing.

For those appearing in the courtroom, the Court will provide a hard copy of the tentative ruling. 

Case Number: 19SMCV01619    Hearing Date: December 27, 2022    Dept: R

The court is in receipt of, and appreciates, the parties’ joint status report.  The court accepts the parties’ joint suggestion that the clawback motion be set for January 12, 2023 at 9:00 am.  The matter will be placed on the calendar and the hearing on February 9, 2023 is vacated.

The parties may file supplemental, simultaneous briefs not to exceed 3 pages in length on the question whether the text messages justify a finding that the crime/fraud exception to the privilege applies or that the privilege was waived.  Briefs will be filed and served electronically (with a courtesy copy to the courtroom) no later than January 4, 2023 at 2:00 pm.  In addition, the parties may append up to 5 five or email text chains to illustrate their points.  The parties are reminded that the test is not whether there was a crime or fraud, but rather whether the attorneys’ work was sought or obtained to enable or aid in the commission of a crime or fraud.  The court also emphasizes that the crime/fraud exception is an exception to privilege only; it is not an exception to the work product protection.  Further, the parties, including the law firm at issue if possible, will file a joint statement setting forth (1) each client of that firm for purposes of anything having to do with the transaction and (2) when that client became a client.  If there is a disagreement, it can be noted.