Judge: Michael E. Whitaker, Case: 18SMCV00399, Date: 2024-03-13 Tentative Ruling

Case Number: 18SMCV00399    Hearing Date: March 13, 2024    Dept: 207

TENTATIVE  RULING

BACKGROUND

This case arises from a dispute between two long-term friends and business associates, Plaintiff Michael A. Vaughan (“Vaughan”) and Defendant and Cross-Complainant John Canning (“Canning.”)  Vaughan is a public insurance adjuster who works out of his Malibu home.  (First Amended Complaint (“FAC”) ¶ 6.)  Vaughan and Canning have been friends for over 20 years.  (FAC ¶ 8.)  To help Canning obtain a source of income, Vaughan taught Canning the business of public insurance adjusting.  (FAC ¶ 10.)  Vaughan also allowed Canning to use Vaughan’s office and equipment for free and occasionally allowed Canning to work on Vaughan’s files to earn extra money.  (FAC ¶¶ 12-13.)

On two incidents – on or about July 13, 2018 and October 24, 2018, Vaughan and Canning became engaged in heated political debates, which led to a physical altercation on October 24, 2018.  (FAC ¶¶ 14-19.)

Following the October 24 altercation, Canning called Vaughan’s longtime attorney, Steven White (“White”) and informed White of Canning’s intent to sue Vaughan “to get enough money to retire.”  (FAC ¶ 20.)

Canning has brought a cross-complaint against White for taking what Canning told White in that phone call and using it in his representation of Vaughan in filing suit against Canning.  (See Generally First Amended Cross-Complaint (“FACC”).)  Canning contends that White dually represented both Canning and Vaughan, and White’s subsequent representation of Vaughan against Canning was improper. 

During White’s November 2, 2023 deposition, White refused to answer the following questions on the basis of attorney-client privilege:

1.      Prior to receiving this phone call from Mr. Canning, had Vaughan already retained you as his attorney for purposes of this [October 2018] incident?

2.      Mr. White, prior to receiving the phone call from Mr. Canning on October 24, 2018, had you already spoken to Vaughan about the incident?

3.      Why did you withdraw from representing Mr. Vaughan?

4.      Did you recommend to Mr. Vaughan that he find a new attorney?

Canning now moves to compel answers to those questions on the basis that (1) the first two questions, concerning the timing of Vaughan’s communications with White do not implicate the attorney-client privilege and (2) there is no attorney-client privilege as against Canning due to the dual representation; and (3) the attorney-client privilege was impliedly waived by the dual representation.

Vaughan opposes the motion; Plaintiff replies to the opposition. 

LEGAL STANDARDS

1.      DISCOVERY – GENERAL PRINCIPLES

            “The purpose of the discovery rules is to enhance the truth-seeking function of the litigation process and eliminate trial strategies that focus on gamesmanship and surprise.  In other words, the discovery process is designed to make a trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.”  (Juarez v. Boy Scouts of Am., Inc. (2000) 81 Cal.App.4th 377, 389 [cleaned up].)  

            Where a party objects, or responds inadequately, to discovery requests, a motion lies to compel further responses, and that party has the burden to justify the objections or inadequate responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255; Code Civ. Proc., § 2031.310, subd. (a) [motion to compel further responses lies “[o]n receipt of a response to a demand for inspection”].)  “A trial court's determination of a motion to compel discovery is reviewed for abuse of discretion.  However, when the facts asserted in support of and in opposition to the motion are in conflict, the trial court's factual findings will be upheld if they are supported by substantial evidence.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 [cleaned up].)

“If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.”  (Code Civ. Proc., § 2025.480, subd. (a).)  Further, “[a] deposition examination of the witness by all counsel, other than the witness' counsel of record, shall be limited to seven hours of total testimony. The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.” (Code Civ. Proc., § 2025.290, subd. (a).)

2.      ATTORNEY-CLIENT PRIVILEGE

Per Evidence Code section 954, “[t]he client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by:  (a) The holder of the privilege; (b) A person who is authorized to claim the privilege by the holder of the privilege; or (c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure.”  (Evid. Code, § 954.)  And “while attorney-client communications are presumed to be confidential, the party claiming the attorney-client privilege as a bar to disclosure has the burden of showing that the communication sought to be suppressed falls within the parameters of the privilege.”  (Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529, 533 [cleaned up].)

Procedural Requirements

1.      TIMELINESS OF MOTION

            A notice of motion to compel further responses to deposition questions must “be made no later than 60 days after the completion of the record of the deposition[.]”  (Code Civ. Proc. § 2025.480, subd. (b).) 

Here, the notice of completion of the record of deposition was provided electronically by the court reporter on November 13, 2023.  Sixty-days later is January 12, 2024, plus two days for electronic service is January 14, which is a Sunday and January 15 was a Court holiday, making the motion due on or before January 16, 2024.

Canning filed the motion on the date set forth above.  Neither Vaughan nor White has objected to the timeliness of the motion. 

2.      MEET AND CONFER

            A motion to compel must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2025.480, subdivision (b).  A meet and confer declaration must state facts showing a reasonable and good-faith attempt at an informal resolution of each issue presented in the motion.  (Code Civ. Proc., § 2016.040.) 

            “The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain an informal resolution of each issue. This rule is designed ‘to encourage the parties to work out their differences informally so as to avoid the necessity of a formal order.  . . .  This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.”  (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1434-1435, citations omitted [cleaned  up].)  To comply, “A reasonable and good-faith attempt at informal resolution entails something more than bickering with [opposing counsel].  Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.”  (Townsend, supra, 61 Cal.App.4th at p. 1439; see also Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294 [to satisfy the attempt at informal resolution required in section 2016.040 opposing parties must do more than try to persuade each other of their errors].)  In short, the Discovery Act “requires that there be a serious effort at negotiation and informal resolution.”  (Townsend, supra, 61 Cal.App.4th at p. 1438.)

            To that end, trial courts are entrusted with discretion and judgment to determine the necessary effort required to satisfy the requirement of an informal resolution. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 433.)  In determining if parties have satisfied Section 2016.040, judges may consider “the history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant.” (Id. at pp. 431-432 [holding that the trial court was correct in determining that sending a letter with oppositions was an insufficient attempt at an informal resolution].)  In sum, meet and confer efforts should go beyond merely sending letters to each other stating each party’s respective positions.

            Here, as set forth in the Declaration Whitney T. Smith, Esq. (“Smith”), counsel for Canning, Canning asserts he has engaged in a reasonable and good faith attempt at an informal resolution of the issues presented in the motion by sending a detailed letter to counsel for White on January 11, 2024 and attempting unsuccessfully to reach White’s counsel thereafter, neither of which White’s counsel had responded to prior to the motion’s filing. 

Although the Court agrees that Canning’s meet and confer efforts to be wanting, those efforts do meet the minimal requirements under the Discovery Act.

3.      SEPARATE STATEMENT

            California Rules of Court, rule 3.1345 requires that any motion involving the content of discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for why an order compelling further responses is warranted. 

            Here, Canning has filed a separate statement related to the motion which complies with Rule 3.1345.

Analysis

1.      FIRST TWO REQUESTS – IMPLICATION OF ATTORNEY-CLIENT PRIVILEGE

            Canning’s first argument is that the first two questions regarding the timing of Vaughan’s communications with White regarding the October incident and whether those communications occurred before or after Canning’s communications with Vaughan about the incident do not implicate the attorney-client privilege.

            The attorney-client privilege protects “a confidential communication between client and lawyer[.]”  (Evid. Code, § 954.)

            However, the date on which an attorney-client communication took place is not itself a matter communicated by client to attorney in the course of their professional relationship, and is therefore not a protected matter within the attorney-client privilege.  (Coy v. Superior Court of Contra Costa County (1962) 58 Cal.2d 210, 220; State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, 640, as modified (May 1, 1997) [“Nor does the attorney-client privilege protect independent facts related to a communication; that a communication took place, and the time, date and participants in the communication.”]

            Therefore, the timing of Vaughan’s communications with White concerning the October incident, and whether Vaughan’s communications with White about that incident occurred before or after Canning’s communications with White are not protected by the attorney-client privilege.

2.      DUAL REPRESENTATION

With regard to the remaining questions, Canning argues that White’s dual representation of Canning and Vaughan invalidates the privilege.

Where 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).

(Evid., § 962, emphasis added.)

            For example, in Wortham & Van Liew v. Superior Court (Clubb) (1987) 188 Cal.App.3d 927, 932-933, the attorney-client privilege could not be used to shield the partnership’s attorney communications regarding the partnership from one of the partners.

            Here, the excerpts from White’s deposition testimony demonstrate that an estimated “six times a year” Canning would solicit free legal advice from White, which typically constituted a 45-second conversation, which White obliged as a marketing tactic, in hopes that it would result in additional clients for White.  (Ex. A to Smith Decl. at pp. 24:24-25:13.)

            The excerpts from Canning’s deposition testimony demonstrates that two to three times per month, Vaughan would instruct Canning to ask White, in White’s capacity as Vaughan’s attorney, a question regarding one of Vaughan’s cases.  (Ex. A to Porneida Decl. at p. 17:1-19.)

            Thus, it appears that White, who was Vaughan’s attorney, would generally communicate with Canning 24-36 times per year regarding matters for Vaughan’s clients, and 6 times per year, Canning would ask White advice on personal matters or matters for Canning’s own clients, which White provided Canning for free, in short conversations lasting approximately forty-five seconds, in the hopes that it would lead to additional clients for White.

Moreover, when Canning attempted to communicate with White regarding the altercation between Canning and Vaughan, White repeatedly informed Canning that White is Vaughan’s attorney and Canning should not divulge confidential information to White concerning the incident.  (Ex. A to Smith Decl. at pp. 53:25-60:22.)  White testified that he allowed Canning proceed to vent, under the impression that Canning intended to communicate his intent to sue Vaughan to White as Vaughan’s agent.  (Id. at pp. 59:6-60:4.)

            As such, to the extent Canning communicated with White on Vaughan’s behalf regarding Vaughan’s clients, such communications would constitute “a matter of common interest” such that those communications between Canning and White would not be attorney-client privileged from Vaughan.  However, it cannot be said that Vaughan’s communications with White concerning the altercation between Vaughan and Canning are “a matter of common interest” between Canning and Vaughan.  To the contrary, Vaughan’s and Canning’s interests are diametrically opposed on this issue.

            Therefore, even if White did “represent” Canning on those few personal questions White answered for Canning for free in passing, there is no evidence suggesting that White ever agreed to represent Canning with respect to Canning’s altercation with Vaughan.  Moreover, White’s representation of Vaughan with respect to Vaughan’s altercation with Canning is not “a matter of common interest” such that the attorney-client privilege between Vaughan and White dissolves as to Canning.

3.      WAIVER

Canning next argues that the attorney-client privilege was impliedly waived because it goes to the heart of the claim in controversy.  In support, Canning cites Merritt v. Superior Court (Reserve Ins. Co.) (1970) 9 Cal.App.3d 721 (hereafter Merritt); Mitchell v. Superior Court (Shell Oil Co.) (1984) 37 Cal.3d 591 (hereafter Mitchell); and Steiny & Co., Inc. v. California Elec. Supply Co. (2000) 79 Cal.App.4th 285, 292 (hereafter Steiny). 

In Merritt, the court found plaintiff had waived the attorney-client privilege by filing a lawsuit for bad faith denial of an insurance claim that “placed in issue the decisions, conclusions and mental state of his then attorneys, particularly as to their confusion and disability allegedly caused by defendant’s conduct which precluded them from making a settlement offer.”  (Merritt, supra, 9 Cal. App. 3d at p. 730.) 

But in Mitchell, the court held that the plaintiff had not impliedly waived the attorney-client privilege with respect to discussions with her attorneys regarding the harmful effects on her emotional state merely by bringing a cause of action for emotional distress.  (Mitchell, supra, 37 Cal.3d at p. 609.)

And in Steiny, the court explained, “When a party asserting a claim invokes privilege to withhold crucial evidence, the policy favoring full disclosure of relevant evidence conflicts with the policy underlying the privilege. Courts have resolved this conflict by holding that the proponent of the claim must give up the privilege in order to pursue the claim. Where privileged information goes to the heart of the claim, fundamental fairness requires that it be disclosed for the litigation to proceed.”  (Steiny, supra, 79 Cal.App.4th at p. 292, emphasis added.)

By contrast, here, Vaughan’s lawsuit against Canning regarding the July and October altercations does not place in issue White’s mental state.  Moreover, to the extent Canning’s counter-suit does place White’s mental state in issue, that counter-suit would not constitute an implied waiver by Vaughan. 

4.      RULINGS

a.       Questions Nos. 1 & 2

            The Court grants Canning’s motion to compel further responses to Questions 1 and 2, as information concerning the timing of attorney-client conversations are not protected by the privilege.

b.      Questions Nos. 3 and 4 

The reasons White withdrew his representation of Vaughan in this matter and what recommendations White did or did not make to Vaughan concerning legal representation are protected by the attorney-client privilege.  Finding no joint interest and no waiver by Vaughan, the Court denies Canning’s motion to compel further responses to Questions 3 and 4. 

CONCLUSION AND ORDERS

Therefore, the Court grants Canning’s motion to compel further responses to Questions 1 and 2, but denies Canning’s motion to compel further responses to Questions 3 and 4. 

Canning shall provide notice of the Court’s orders and file a proof of service regarding the same.

DATED:  March 13, 2024                                          ___________________________

                                                                                    Michael E. Whitaker

                                                                              Judge of the Superior Court