Judge Mitchell L. Beckloff, Case 21STCP02213 2023-02-08 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 21STCP02213, Date: 2023-02-08 Tentative Ruling

This proceeding concerns a dispute over the production of documents from Respondent, the County of Los Angeles, pursuant to Government Code section 7923.00, the California Public Records Act (CPRA).[1] Petitioner, Constituents for Thoughtful Governance, seeks a writ of mandate under Code of Civil Procedure section 1085, subdivision (a) and Government Code section 7923.100, requiring Respondent to produce requested documents. In addition, Petitioner seeks a declaratory judgment that the requested documents are not protected by any claim of privilege (including attorney-client) and are not exempt from production under the CPRA.

Petitioner failed to comply with the California Rules of Court, Rule 3.1116 regarding deposition testimony as an exhibit. Respondent’s objections based on Petitioner’s failure are well taken. Nonetheless, Petitioner has cited specific pages of the deposition testimony to support its argument. Respondent has objected to certain pages cited. As phrased, “Mischaracterizes testimony” is not an evidentiary objection. To the extent, Petitioner’s cited evidence does not support its argument, Respondent can so argue. To the extent the deponent testifies in a manner inconsistent with Petitioner’s characterization, Respondent can cite the deponent’s testimony undermining Petitioner’s characterization.

For clarity, the court agrees the deposition testimony at pages 56 (objection 2), 57 (objection 3), 71 (objection 4), 74 (objection 5), 75 (objection 6), 84-85 (objections 7, 8), 90-93 (objection 9), 99 (objection 10), 117-118 (objection 11, 12),[2] and 127 (objection 13) does not detail the contents of any legal agreement between the County and outside attorneys. The evidence proffered does not suggest the agreements provide no details about the legal representation undertaken.

On May 13, 2021, Petitioner requested any agreements now in effect between Respondent and private law firms acting as outside counsel for Respondent in civil litigation matters involving Respondent and/or its employees as defendants. Petitioner also requested documents pertaining to how private law firms contract with Respondent to become outside counsel, and any records related to the most recent requests for proposal issued by Respondent soliciting bids from private law firms to be retained as outside counsel.

On June 15, 2021, Respondent responded and objected to the requests on the grounds the requests were vague and ambiguous, overbroad as to time, unduly burdensome, protected by attorney/client privilege and work product doctrine, subject to the pending litigation exemption, confidential, and protected by the deliberative process privilege.

Code of Civil Procedure section 1085, subdivision (a) provides in relevant part:

“A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.”

“There are two essential requirements to the issuance of a traditional writ of mandate: (1) a clear, present and usually ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty. (California Ass'n for Health Services at Home v. Department of Health Services (2007) 148 Cal.App.4th 696, 704.) “Generally, a writ will lie when there is no plain, speedy, and adequate alternative remedy . . . .” (Pomona Police Officers’ Ass’n v. City of Pomona (1997) 58 Cal.App.4th 578, 583-84.)

“When there is review of an administrative decision pursuant to Code of Civil Procedure section 1085, courts apply the following standard of review: ‘[J]udicial review is limited to an examination of the proceedings before the [agency] to determine whether [its] action has been arbitrary, capricious, or entirely lacking in evidentiary support, or whether [it] has failed to follow the procedure and give the notices required by law.’ [Citations.]” (Id. at 584.)

Pursuant to the CPRA, individual citizens have a right to access government records. In enacting the CPRA. “Whenever it is made to appear, by verified petition to the superior court of the county where the records or some part thereof are situated, that certain public records are being improperly withheld from a member of the public, the court shall order the officer or other person charged with withholding the records to disclose those records or show cause why that person should not do so.” (Gov. Code, § 7923.100.)

In its Opening Brief, Petitioner pursues all three CPRA requests made to the County on May 13, 2021: To wit, (1) Respondent’s retainer agreements [Category One], (2) written procedures for contracting [Category Two], and (3) Respondent’s most recent solicitations for bids to be retained as outside counsel [Category Three].

Respondent argues Petitioner abandoned the latter two requests because the petition seeks only an injunction compelling disclosure of Respondent’s retainer agreements. Respondent argues “Petitioner did not include those requests [Category Two and Category Three documents] in the Petition and never sought a writ on those requests.” (Opposition 19:22-23.) Respondent also asserts it advised Petitioner “it was unable to locate responsive records” as to its requests for Category Two and Category Three documents. (Opposition 19:24.) Respondent does not otherwise address Category Two or Category Three documents in its opposition.

The court agrees the petition controls the scope of relief available to Petitioner. Contrary to Petitioner’s position, Respondent did not waive any arguments about its failure to produce Category Two and/or Category Three documents. (Reply 2:2-3.) Instead, Petitioner has waived production of the Category Two and Category Three documents by failing to include them within the specific allegations or relief requested in the petition.

“On May 14, 2021, Petitioner requested ‘[a]ny agreements now in effect between the Claims Board/County of Los Angeles and private law firms acting as outside counsel for the County in civil litigation matters involving the County and/or its employees as defendants” pursuant to Government Code section [7923.100].” (Pet., ¶ 2.)

Petitioner does not identify Category Two or Category Three documents in its petition. Additionally, in its prayer for judgment, Petitioner requests:

“a permanent injunction compelling Respondent to disclose any retainer agreements currently in effect with private law firms who serve as de facto county counsel.” (Pet., Prayer, ¶ 2.)

The pleadings define the issues to be tried. (Simmons v. Ware (2013) 213 Cal.App.4th 1035, 1048 [quoting Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2012) ¶ 6:8, p. 6-2 (rev. # 1, 2011)].) The pleadings “delimit the scope of issues that are pertinent to resolution of the case.” (Department of Finance v. City of Merced (2019) 33 Cal.App.5th 286, 295 [“pleadings outline the perimeter of materiality” in summary judgment context].) “By framing and limiting the issues, the complaint limits the bases upon which a plaintiff may seek to impose liability on a defendant.” (Centex Homes v. Superior Court (2013) 214 Cal.App.4th 1090, 1102.)

As the relief requested in its Opening Brief exceeds the scope of its petition, the court finds the Category Two and Category Three documents are not at issue here. Even read broadly, the petition requests no relief related to Category Two and Category Three documents. That is, Petitioner’s claim at trial is limited to production of the Category One documents only.[3]

Business and Professions Code section 6149 provides: “A written fee contract shall be deemed to be a confidential communication within the meaning of subdivision (e) of Section 6068 and Section 952 of the Evidence Code.” (See Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 786. [“Among those communications subject to the duty of confidentiality and the attorney-client privilege is a written fee contract between an attorney and a client. (Bus. & Prof. Code, § 6149 . . . .)])

Business and Professions Code section 6068, subdivision (e)(1) requires an attorney: “To maintain inviolate the confidence, and at every peril to himself or herself preserve the secrets, of his or her client.”[4]

Evidence Code section 952 describes the attorney-client privilege. A “ ‘confidential communication between client and lawyer’ means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client . . . .”

Despite Business and Professions Code section 6149, Petitioner contends any fee agreements between Respondent and its counsel are not confidential. Petitioner relies on Business and Professions Code section 6148, subdivision (d)(4) to support its argument.

Business and Professions Code section 6148 concerns fee agreements between an attorney and a client that are not contingency fee agreements. (See Bus. & Prof. Code, § 6147 [contents of contingency fee agreement].) The statute specifies contracts for attorney representation, where it is reasonably foreseeable the total expense to the client will exceed $1,000, must be in writing. (Id., at § 6148, subd. (a).) The statute specifies the required contents of those written fee agreements. (Ibid.) The statute further provides an attorney must provide a client with a written invoice for services with a clear explanation of the fees and costs incurred by a client. (Id., at § 6148, subd. (b).)

Petitioner correctly notes Business and Professions Code section 6148 “governs written fee contracts for legal services.” (Opening Brief 4:12-13.) Petitioner notes Business and Professions Code 6148 does not apply “[i]f the client is a corporation.” (Bus. & Prof. Code, § 6148, subd. (d)(4).) Petitioner argues the County is a corporate entity and concludes “where the County contracts with outside law firms as their client, the written fee agreements are not confidential under Section 6149.” (Opening Brief 4:16-17.)

The court disagrees. Petitioner’s conclusion is legally unsupported. Business and Professions Code section 6148 dictates the contents and billing practices of attorneys and clients. The provision does not apply where an attorney represents a corporate client. Business and Professions Code section 6148 does not inform on the confidentiality of attorney-client fee agreements expressly provided for in Business and Professions Code section 6149. The issues are distinct. Business and Professions Code section 6148 does not inform on Business and Professions Code section 6149.[5] Petitioner has not demonstrated otherwise.

Petitioner contends “[e]ven if [Business and Professions Code] section 6149 did apply to the requested agreements, any confidentiality would be waived where outside legal counsel report details of their agreements with the County, including their affiliation, legal fees, and the legal matters they are working on, in public documents presented at open meetings of the Los Angeles County Claims Board.” (Opening Brief 4:18-22.) Petitioner supports its claim with an agenda for a public meeting of the Los Angeles County Claims Board on December 19, 2022 as an exemplar. (Borstein Decl., Ex. D.)

The evidence provides case summaries of litigation involving Respondent where a settlement with Respondent has been proposed. The litigation summaries provide case numbers, the attorneys involved in the case, a description of the nature of the case and the amount of attorney’s fees and costs paid to date. The fees and costs disclosed merely identify the amounts incurred—there is no other detail about fees and costs or an attorney’s retention terms.

Petitioner fails to demonstrate how the name of the attorney involved and the overall amount of attorney’s fees and costs expended constitutes a waiver of the information contained in any written fee agreement between Respondent and its attorney. That the name of the attorney has been disclosed (or discernable from the case number) along with the amount of fees and cost incurred overall does not suggest a waiver of the terms of the representation agreement.[6] The court cannot find the on the evidence provided Respondent has waived the attorney-client privilege attached to its fee agreements with outside counsel.[7]

Accordingly, Business and Professions Code section 6149 designates the agreements between Respondent and its outside counsel are privileged. Petitioner has failed to demonstrate with evidence Respondent has waived the terms of any agreements with its outside counsel based on a waiver.[8] The privileged nature of the agreements between Respondent and its outside counsel are therefore exempt from disclosure under Government Code section 7927.705.

Given that Petitioner’s request for the disclosure of the retainer agreements is confidential and protected by the attorney-client privilege, the court cannot provide a judicial declaration that Respondent failed to make a complete production under the CPRA. The evidence does not support such a claim.

Petitioner has not prevailed in this proceeding. Thus, it is not entitled to an award of attorney’s fees and costs.

[1] Petitioner originally brought its petition under Government Code section 6253. The CPRA has been recodified as Government Code section 7923.100 et seq. (See Gov. Code, § 7923.100, Law Revision Commission Comments. [“Section 7923.100 continues the first sentence of former Section 6259(a) without substantive change.”]

[2] The evidence does not suggest the agreements provide no information other than rates charged by timekeepers.

[3] While the County’s response to Petitioner’s CPRA request is not entirely clear, the County did advise Petitioner it “conducted a diligent search and reasonably inquiry and was unable to locate documents responsive to [the] request.” (County’s letter of June 15, 2021.) Petitioner’s Opening Brief does not address Petitioner’s search efforts. Thus, nothing before the court suggests Category Two and Category Three documents exist but were not produced.

[4] Notwithstanding the duty, “an attorney, may, but is not required to, reveal confidential information . . . to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.” (Evid. Code, § 6068, subd. (e)(2).)

[5] Petitioner’s citation to Chaganti v. 12 Phone Intern., Inc. (N.D. Cal. 2017) 635 F.Supp.2d 1065, 1071 for support (with a “see” signal) eludes the court.

[6] It is simply inaccurate to claim, as Petitioner does, the information in the fee agreements “is subsequently made available to the public by the Los Angeles County Claims Board on an ongoing basis.” (Reply 2:27-28.) Disclosure of the amount of attorney’s fees and costs incurred does not publicly disclose “material terms of the requested agreements . . . .” (Reply 3:3-4.)

[7] The public disclosure of the overall amount of fees does not provide any specific information about the representation agreement such that the confidentiality of the agreement has been waived. The court disagrees an in camera review of the responsive documents is necessary. Moreover, review would be prohibited under Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 736.)

[8] As noted earlier, Petitioner has mischaracterized the deposition testimony of Hector Rodriguera. Nothing suggests Respondent’s agreements with its outside counsel merely reflect the name of the law firm and the billing rates of timekeepers.