Judge Ralph C. Hofer, Case Number: 20GDCV00518, Date: 2024-06-14 Tentative Ruling

Plaintiff Hamed Golshan alleges that defendant Mike Kamali was a fifty percent shareholder of a business entity known as Saint Glen, Inc., which operates a restaurant known as Panini Grill in Los Angeles County (the Company), and in September of 2019 entered into a Stock Purchase Agreement wherein defendant agreed to sell his entire fifty percent interest to plaintiff for the sum of $750,000.00. The sale was to be consummated on December 30, 2019, and pursuant to the terms of the Agreement defendant was to remain fully liable for all claims, actions, lawsuits and demands that the Company was liable for prior to December 30, 2019.

The complaint alleges that defendant has failed to perform defendant’s obligations under the Agreement, as defendant has failed to pay vendors for products purchased prior to December 30, 2019, failed to pay sums due to the franchisor, failed to pay rent to the landlord, and failed to file taxes for the Company for the year 2019.

The complaint also alleges that in connection with the transaction, defendant made false representations upon which plaintiff relied in agreeing to purchase defendant’s share in the Company, including that all taxes would be paid for by defendant, that there were no known outstanding balances due to vendors, and that the lease and franchisor/franchisee agreements with which they had been fully complied.

Defendant Mike Kamali has filed a cross-complaint against plaintiff Hamed Golshan as cross-defendant, alleging that cross-complainant and cross-defendant entered into a Stock Purchase Agreement for the shares of stock in the Panini Kabob Grill, under which Golshan agreed to pay $750,000 for the shares. The cross-complaint alleges that on December 31, 2019 Golshan paid Kamali a deposit of $450,000, and Kamali gave ownership of the Panini Kabob Grill to Golshan on January 1, 2020, but that Golshan has never paid the balance of the purchase price in the sum of $300,000, although the balance was to be paid to Kamali on or before January 31, 2020.

The cross-complaint also alleges that cross-complainant Kamali entered into an implied-in-fact contract for the sale of Kamali’s 50% share of Saint Glen with cross-defendant Hootan Ataian, as Ataian had approached Kamali proposing that they enter into a partnership to run a food-truck catering business that would compete with Panini Kabob Grill, took Kamili to his Pacific Stone warehouse to show Kamali the food truck, obtained the consent of the franchisor based on informing him that Ataian was interested in purchasing the shares in Saint Glen, and made the $450,000 payment with two checks from two bank accounts belonging to Ataian. The operative cross-complaint, the FACC, also alleges that Ataian made various misrepresentations to Kamali regarding the transaction.

The two subpoenas each seek the same records, with one additional request made only to the individual, Mirhosseini. The requests seek records including all billing records relating to Saint Glen, relating to the drafting of the Stock Purchase Agreement, the Security Agreement, and the Promissory Note, and all communications relating to the sale of Saint Glen, and between the deponents and Ataian and Amir Talebi relating to each of the subject documents. [Starr Decl., Exs. A, B, Subpoenas, Attach. 3]. The subpoena as to Mirhosseini also seeks communications between the deponents and any third party relating to Saint Glen. [Starr Decl., Ex. A, Subpoena, Attach. 3, Request No. 13].

The deponents seek to quash the subpoenas on the ground they violate attorney-client privilege, as defendant is seeking testimony and production of documents from the deponents Mirhosseini and MLG, an attorney and law firm, which would disclose communications between Ataian, non-party Amir Talebi and their counsel.

“At some point I was involved in a potential stock purchase for Saint Glen, Inc. and Mr. Mirhosseini drafted various documents on my behalf and at the request of myself and Amir Talebi. Due to a conflict of interest, neither Mr. Mirhosseini nor Mirhosseini Law Group, APC, are representing me in this matter.”

“On or around April 25, 2024, Mr. Mirhosseini contacted me to advise me that Defendant had issued a subpoena requesting his personal testimony and MLG’s business records related to the documents drafted in relation to the Saint Glen, Inc. purchase. I did not agree to waive the attorney-client privilege because the documents sought by Defendant include communications between myself and Ali R. Mirhosseini/MLG that are privileged.”

With respect to the client Talebi, who is not a party to this lawsuit, the motion also indicates that to date, MLG “has not been provided with any written authorization from Mr. Talebi granting us permission to waive privilege and produce the requested documents or provide testimony regarding the same.” [Starr Decl., para. 7].

Under CCP § 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action..., if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”

“(a) 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, including unreasonable violations of the right of privacy of the person.”

With respect to limiting discovery, the burden is generally on the moving party to establish good cause for the relief requested. Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1110. The granting or denial of relief is reviewed for abuse of discretion. See Meritplan Insurance Co. v. Superior Court (1981, 2nd Dist.) 124 Cal.App.3d 237, 242.

CRC Rule 3.1345 (a) requires that “Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion:...(5) To compel or to quash the production of documents or tangible things at a deposition.”

The arguments are broadly made here that all documents requested from the personal attorney deponents are attorney-client privileged, but a separate statement would be enormously helpful to the court here. The court will consider whether it will require that a separate statement be submitted to assist the court in ruling on the motion. Specifically, for example, there is a request for communications between the deponent Mirhosseini and “any third party RELATING TO SAINT GLEN,” which would evidently not be communications between the deponent as the attorney and his clients. [See Subpoena, Ex. A, Requests Nos. 13].

CCP § 1985.3(b) requires that, “prior to the date called for in the subpoena duces tecum for the production of personal records, the subpoenaing party shall serve or cause to be served on the consumer whose records are being sought a copy of the subpoena duces tecum,” any affidavit supporting the issuance of the subpoena and a notice with specific information, and instructions, as specified in subdivision (e).

“ (1) "Personal records" means the original, any copy of books, documents, other writings, or electronically stored information pertaining to a consumer and which are maintained by any "witness" which is a physician, dentist, ophthalmologist, optometrist, chiropractor, physical therapist, acupuncturist, podiatrist, veterinarian, veterinary hospital, veterinary clinic, pharmacist, pharmacy, hospital, medical center, clinic, radiology or MRI center, clinical or diagnostic laboratory, state or national bank, state or federal association (as defined in Section 5102 of the Financial Code), state or federal credit union, trust company, anyone authorized by this state to make or arrange loans that are secured by real property, security brokerage firm, insurance company, title insurance company, underwritten title company, escrow agent licensed pursuant to Division 6 (commencing with Section 17000) of the Financial Code or exempt from licensure pursuant to Section 17006 of the Financial Code, attorney, accountant, institution of the Farm Credit System, as specified in Section 2002 of Title 12 of the United States Code, or telephone corporation which is a public utility, as defined in Section 216 of the Public Utilities Code, or psychotherapist, as defined in Section 1010 of the Evidence Code, or a private or public preschool, elementary school, secondary school, or postsecondary school as described in Section 76244 of the Education Code.”

(2) Furnish the witness a written authorization to release the records signed by the consumer or by his or her attorney of record. The witness may presume that any attorney purporting to sign the authorization on behalf of the consumer acted with the consent of the consumer, and that any objection to release of records is waived.”

As set forth above, counsel has indicated in a declaration that this section was not complied with in the service copies on one of the two deponents, the individual, and it appears from the attached subpoena that there is no proof of service included attesting to compliance with subdivision (b) nor a written authorization to release the records from the consumers. [Starr Decl., para. 9, Ex. A].

Defendant in opposition argues that notices to consumer were served on both Ataian and Talebi, and submits copies of those notices, which appear to have been served by mail on William O’Brien, who is designated attorney for Ataian in the proof of service, and on Talebi himself. [Dominguez Decl., Exs. M, N]. There is no proof of service submitted showing that defendant has caused to be served “upon the witness” Mirhosseini a proof of personal service or of service by mail attesting to compliance with subdivision (b). There is no proof of service showing the Notice to Consumers was ever served on this witness.

Defendant does not point to any such proof of service, but further argues that the witness served objections to the notices. Defendant submits copies of the Notices to Consumer, again showing service only on the consumers or counsel, not either of the witnesses. Mirhosseini checked the box that he objected to the production of his records, on the ground, “The documents sought are protected by attorney-client privilege, which has not been waived,” and signed the Objection. [Dominguez Decl., Ex. R]

While this suggests that Mirhosseini eventually came into possession of the Notice to Consumer documents, there remains no proof of service of these notices on Mirhosseini, and no declaration from defendant’s side stating they were served, the declaration stating “Mirhosseini Law Group was served with a copy of the subpoena,” without mention of the notice, and without mention of Mirhosseini individually. [Dominguez Decl., para. 18]. This showing fails to contradict the declaration of counsel for the witnesses which states that defendant “failed to comply with any part of California Code of Civil Procedure section 1985.3 (c) with respect to the Deposition Subpoena served” on Mirhosseini and did not serve the witness “with a copy of the Notice to Consumer.” [Starr Decl., para. 9].

There has been a failure to comply with CCP section 1985.3(c) in connection with the Mirhosseini subpoena, and unless at the hearing full compliance can be shown, the court will consider granting the motion as to the Mirhosseini subpoena on this ground and quashing that subpoena. The motion would be granted without prejudice to defendant properly serving a subpoena on the witness, if necessary, given the fact that the subpoena to MLG was properly served.

Deponents rely on Business & Professions Code section 6068(e)(1). Section 6068 provides, “It is the duty of an attorney to do all of the following:…” Subdivision (e)(1) states, “To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”

“(a) Except as otherwise provided in this section, the right of any person to claim a privilege provided by Section 954 (lawyer-client privilege…is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has legal standing and the opportunity to claim the privilege.

“(a) Whenever a privilege is claimed on the ground that the matter sought to be disclosed is a communication made in confidence in the course of the lawyer-client....relationship, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof of establishing that the communication was not confidential.”

It is ordinarily the initial burden of the party seeking to withhold discovery to show that a privilege applies. See Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 (“The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship,” citing D.I Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 729).

The motion broadly argues that defendant is seeking testimony and production of documents from MLG that would disclose communications between Ataian, Talebi, and their counsel, and the clients have not consented to disclosure of those communications. The declaration of counsel indicates that the subject matter of the discovery is the work performed by the attorneys “on behalf of Cross-Defendant Hootan Ataian and Amir Talebi, with respect to a stock purchase agreement involving Saint Glen, Inc., as well as a security agreement and promissory note drafted by MLG and correspondence between the attorney and clients relating to those documents. [Starr Decl., paras. 2, 4]. As noted above, there is sufficient evidence that cross-defendant Ataian has not consented to disclosure of attorney-client privileged communications. [Starr Decl., paras. 5-7, Ataian Decl., para. 3].

With respect to the requests which request communications between the attorney deponents and the individual clients in connection with the transaction and the documents, it would appear that this is sufficient to satisfy the initial burden that the requests involve communication between the attorney and client in the course of an attorney-client relationship. These would include Requests Nos. 6-9 as to Ataian and Requests Nos. 10-12 as to Talebi.

With respect to the client Talebi, it appears from the opposition that at the time of the filing of the Starr declaration from the deponents that Talebi had not yet consented to the disclosure of privileged communications, the declarant was unaware that Talebi has been in touch with counsel for defendant, acknowledged receipt of the subpoenas with notice to consumer, and had his attorney respond to a separate subpoena for Talebi’s deposition, and set up a deposition date. [Dominguez Decl., paras. 16, 17, Exs. O, P]. The deposition was conducted on May 8, 2024, and Talebi was questioned concerning the promissory note and security agreement at issue. [Dominguez Decl., para. 20, Ex. S].

It would appear that Talebi may have now consented to the disclosure of some of the documents or communications at issue or have waived any potential objection by disclosing otherwise privileged information, or rendered the motion moot in certain respects. This issue will be discussed at the hearing, as the court has insufficient information to determine the existence of or extent of any waiver, and the opposition does not clearly make a consent or waiver argument.

The scope of a statutory or implied waiver “is narrowly defined and the information required to be disclosed must fit strictly within the confines of the waiver. Transamerica Title Ins. Co. v. Superior Court (1987) 188 Cal.App.3d 1047, 1052. The party opposing the privilege bears the burden of showing there has been an implied waiver. 2,022 Ranch, LLC v. Superior Court (2004) 113 Cal.App.4th 1377, 1395.

The excerpts from the deposition attached to the opposition are brief and appear to be directed at other arguments made in the opposition, such as that there were no loan proceeds connected with the promissory note, and that Ataian instructed Talebi and Golshan to lie about it if asked, so the promissory note was falsified. [Dominguez Decl., Ex. S].

At this point, the court is inclined to deny the motion as to the Requests which request documents reflecting communications with Talebi, only to the extent this client has waived any privilege by his own deposition testimony and discussion of the subject documents. The deponents will be expected to produce documents and respond to questions which pertain to matters which Talebi has not maintained in confidence in connection with Requests Nos. 10-12. The motion is denied without prejudice to the deponents withholding documents based on a claim of attorney-client privilege, if proper, accompanied by a privilege log pursuant to which it can be determined by the parties and the court that a document is subject to privilege, and not subject to waiver. The deponents may also object to specific deposition questions which they in good faith believe remain subject to the attorney-client privilege, with the basis for the claim of privilege stated on the deposition record.

With respect to Ataian, defendant Kamali in the opposition argues that the motion should be denied, and the subpoenas enforced because an implied attorney-client relationship existed between Mirhosseini and/or MLG and Kamali, so that Ataian may not claim attorney-client privilege with respect to the matter of common interest for which they both retained the attorneys.

“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).”

Defendant also relies on Lister v. State Bar (1990) 51 Cal. 3d 1117, involving a review of attorney disciplinary proceedings by the State Bar of California. In determining if there was an attorney-client relationship between the attorney and client, the California Supreme Court rejected an argument by the attorney that there was no such relationship because the client never paid the attorney:

“Petitioner contends that because Merritt never paid him, there was no attorney-client relationship. Although there apparently was a misunderstanding as to whether or not petitioner was retained on a contingency fee basis, the record supports the finding that an attorney-client relationship existed between them. Merritt testified that she asked petitioner to file the lawsuit on her behalf, and gave him all the relevant documents. She understood that petitioner was working on the matter. Petitioner's office did, in fact, do substantial work on the case. “No formal contract or arrangement or attorney fee is necessary to create the relationship of attorney and client. It is the fact of the relationship which is important.” (Farnham v. State Bar (1976) 17 Cal.3d 605, 612 [131 Cal.Rptr. 661, 552 P.2d 445].) Under the circumstances, an attorney-client relationship existed between petitioner and Merritt. He could not simply abandon her and let the statute of limitations expire.”

Defendant also relies on Responsible Citizens v. Superior Court (1993) 16 Cal. App. 4th 1717, in which the court of appeal addressed the issue of whether the trial court had properly disqualified a law firm from representing an association and an individual in the subject lawsuit. The court of appeal directed the trial court to vacate its order disqualifying counsel and to conduct further proceedings, holding that an attorney representing a partnership does not necessarily have an attorney-client relationship with an individual partner for purposes of applying the conflict of interest rules. The highlighted language is what is relied upon by defendant in this matter:

“An implied contract is one, the existence and terms of which are manifested by conduct.” (Civ. Code, § 1621.) “The distinction between express and implied in fact contracts relates only to the manifestation of assent; both types are based upon the expressed or apparent intention of the parties.” (1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, § 11, p. 46, italics in original.)

Without any attempt at being exhaustive, we can identify some factors which might support, or undercut, implication of an attorney-client relationship with an individual partner in any particular case. The type and size of the partnership obviously have a bearing, as already noted. So do the nature and scope of the attorney's engagement by the partnership. The kind and extent of contacts, if any, between the attorney and the individual partner might be important factors. The same is true as to the attorney's access to information (e.g., partnership financial information) relating to the individual partner's interests.

As noted earlier, the rule prohibiting simultaneous representation of adverse interests is said to be an outgrowth of the confidential nature of an attorney-client relationship. Because a client reposes confidence in his or her attorney, the attorney owes the client a duty of undivided loyalty. (E. F. Hutton & Company v. Brown, supra, 305 F.Supp. at pp. 393-394; Developments in the Law-Conflicts of Interest in the Legal Profession (1981) 94 Harv.L.Rev. 1244, 1292-1315.) For that reason, we believe that in determining whether an attorney-client relationship exists in cases like this, primary attention should be given to whether the totality of the circumstances, including the parties' conduct, implies an agreement by the partnership attorney not to accept other representations adverse to the individual partner's personal interests. (See Friedman, The Creation of the Attorney-Client Relationship: An Emerging View, op. cit. supra, 22 Cal. W.L.Rev. at p. 231, suggesting that one of the most important facts involved in finding an attorney-client relationship is “the expectation of the client based on how the situation appears to a reasonable person in the client's position.”)”

Defendant argues that here, an implied attorney-client relationship arose because Mirhossein led Kamali to believe that Mirhossein represented both Kamali and Ataian when he drafted the agreement, as Kamali had previously retained Mirhossein’s services in other matters, and Mirhossein treated Kamali the way he had when representing Kamili in other matters; requesting direct feedback and changes to the agreement as a lawyer would do from his client. Defendant also argues that Mirhossein never told Kamali that Mirhossein was not representing Kamali or that Kamali needed to take the agreement to another lawyer for advice or review.

Defendant Kamali submits his own declaration, in which he states that in 2019 he sold his share of Saint Glen, and at the time believed he was selling his share to cross-defendant Hootian Ataian, and they went to see the lawyer Mirhosseini to prepare a stock purchase agreement. [Kamali Decl., para. 4]. Kamali states:

First, Ali led me to believe that he was representing both Hootan and I when he drafted the Agreement. When Ali initially drafted the Agreement, Ali asked Hootan and I to provide him with any feedback and let him know if we had any changes. Ali never told me that he was not my lawyer. Ali also never told me to take the Agreement to my own lawyer to get his/her advice or review.

Second, when Hootan and I agreed to go to Ali to draft the Agreement, I agreed to have Ali draft the Agreement because Ali’s previously represented me in other cases. Ali also prepared a contract for me for one of my Del Taco franchises. At the time Hootan and I went to Ali to draft the Agreement, I was comfortable with Ali drafting the Agreement because I trusted Ali since he represented me in the past.”

“To the contrary, Ali treated me the same way he treated me when he represented me in the other cases and when he drafted the contract for me. Ali would ask me for my feedback and changes to the document I requested. Ali would also answer my questions on the documents he prepared for me. Ali did the same when he prepared the Agreement.”

Defendant also relies on deposition testimony of Ataian, in which Ataian testified that there was an agreed upon price with Kamali, and Ataian then suggested, evidently to Kamali and Golshan, “‘You guys should go see a lawyer.’ And at that time both told me that,‘What your recommendation is?’” and he remembers telling them his lawyer is Ali Mirhosseini, who reviewed the contract in 2016 for the Panini, and as soon as Ataian brought it up, Kamali said, “‘Actually, I know him. He was my lawyer, too. I’ve done a few cases with him. Also, I’ve done one Del Taco with him; and he draft the contract.’ And he was very comfortable with that.’” [Dominguez Decl., Ex. I, 47-48].

Hence, under the circumstances, given that Kamali was an experienced business person, and evidently consulting the attorney represented to have been Ataian’s attorney for purposes of preparing documentation for an alleged transfer between Saint Glen, Talebi and Kamali as sellers, and Goshan as buyer, with Ataian as secured party, and party to a promissory note, that a reasonable person, particularly in the absence of a formal retainer, would not assume that the documentation prepared by the attorney would be reasonably to be expected to be protective of all parties. There is no evidence submitted of any manifestation of assent to legal representation by Kamali, and the conflict and need to consult separate counsel should have been obvious.

It is not clear what documents or information is claiming to be subject to the privilege, subject to waiver, or subject to a common interest theory. Without a designation of specific documents and specific information relating to the scope of the disclosures already made in this litigation by the Ataian and Talebi, it is difficult to even determine if the documents and issues raised involve communications between the client and attorney made in confidence, as opposed to in the presence of non-clients, and shared with such third parties, in effect, that any particular documents included privileged information in the first instance.

This posture makes it extremely difficult for the court to determine if the documents contain privileged material in the first place, and to then determine if the parties were in fact aligned and had a common interest in the transaction, when it appears that their interests may have in fact been adverse to each other.

Here, the arguments are entirely superficial, and this court is left without sufficient information to determine if any responsive documents here are protected as privileged. The court will hear argument with respect to whether the motion will be continued for a further showing, privilege log and legal argument concerning the Requests with respect to communications directly with Ataian.

With respect to the lack of consent by cross-defendant Ataian, with whom the attorneys concede there is an attorney-client relationship and the requests for information specifically concerning communications between the attorneys and this witness, Requests Nos. 6-9, The court will hear argument with respect to whether the motion will be continued for a further showing, privilege log and legal argument concerning the Requests concerning communications directly with Ataian. The court is inclined to grant the motion and quash the subpoenas with respect to communications which are directly and exclusively between Ataian and the attorneys.

Under Evidence Code § 956 (a), “There is no privilege under this article if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or fraud.” Accordingly, it is held this exception may arise where “the attorney-client relationship is embarked upon in furtherance of criminal activity, and the relationship is permeated by criminal activity and the client takes an active part in it…” People v. Superior Court (1995, 2nd Dist.) 37 Cal.App.4th 1757, 1768, n. 4. To invoke the exception, the burden is on the party claiming the exception to make a “prima facie showing that the services of the lawyer were sought or obtained to enable or to aid anyone to commit or plan to commit a crime or fraud.” State Farm Fire and Casualty Co. v. Superior Court (1997, 2nd Dist.) 54 Cal.App.4th 625, 643, quotation, citation omitted. To establish this exception, trial courts require that the propounding party “provide a factual basis adequate to support a good faith belief by a reasonable person” that the services were obtained to enable the commission of a crime or fraud. United States v. Zolin (1989) 491 U.S. 554, 572 quotation, citation omitted. The person invoking the exception must also establish a reasonable relationship between the fraud or crime and the communication. See Cunningham v. Connecticut Mut. Life Ins. (S.D. Cal. 1994) 845 F.Supp. 1403, 1412 (applying California law).

The opposition argues that Ataian cannot claim privilege because he used Mirhossein’s services to falsify documents that were produced during this litigation and which Talebi testified were falsified to aid Ataian in another lawsuit filed against him by the Panini Kabob Grill franchise. [Ex. S, Talebi Depo., pp. 51, 53, 62]. The showing here does not attempt to set forth the elements of any crime or of fraud, and to establish a prima facie case. Again, there is no specification of any documentation or communication to establish that there was a reasonable relationship between any alleged fraud or crime and a communication.

The motion also argues that cross-defendant is judicially estopped from taking contradictory positions. The argument is that throughout this litigation Ataian has been taking the position that he was not a party to the sale of Saint Glen, but was only helping Kamali find a buyer, but now his is taking the contrary position that he was represented by Mirhosseini during the sale. These are not contrary positions, as Ataian continues to rely on his position that he became involved in facilitating the transaction and does not now take the position that he was a direct party to the contract by virtue of an attorney protecting his position in maintaining a security interest. There is no legal authority cited under which equitable estoppel would apply to an issue of attorney-client privilege.

“Although exercise of the privilege may occasionally result in the suppression of relevant evidence, the Legislature of this state has determined that these concerns are outweighed by the importance of preserving confidentiality in the attorney-client relationship. As this court has stated: ‘The privilege is given on grounds of public policy in the belief that the benefits derived therefrom justify the risk that unjust decisions may sometimes result from the suppression of relevant evidence.’ [Citations.]” (Id. at pp. 599–600, 208 Cal.Rptr. 886, 691 P.2d 642.) “[T]he privilege is absolute and disclosure may not be ordered, without regard to relevance, necessity or any particular circumstances peculiar to the case.” (Gordon v. Superior Court (1997) 55 Cal.App.4th 1546, 1557, 65 Cal.Rptr.2d 53.)”

As noted above, where deponents have established a prima facie claim of privilege, “the opponent of the claim of privilege has to burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply.” Costco, at 733, citations omitted.

Overall, the burden has shifted to defendant to establish the subject communications were not confidential or that the privilege does not apply for other reasons. Defendant has failed to do so with respect to the direct communications between attorney and client, and as noted above, the court is inclined to grant the motion as to Requests Nos. 6-9, or to require a further showing.

It is not clearly established that such billings would consist presumably of communications between the attorney and client, and the court will hear argument with respect to whether the initial burden has been met by deponents with respect to these requests, and whether if the burden has shifted, defendant can establish the communications would not be considered confidential or otherwise discoverable, as these specifics are not addressed in the opposition. The court notes that billings may on occasion reveal attorney-client privileged details or work product with respect to specific services performed, but neither side has made an argument concerning such arguments specifically with respect to billings. The court is inclined to deny the motion as to billings, again without prejudice to the deponents redacting information from billings which they believe in good faith are subject to attorney-client privilege, and to assert objections to specific questions based on such a privilege with a factual explanation on the deposition record.

The court will hear argument concerning whether these requests are subject to quashing, as they would include communications between counsel and third parties who are not the clients and may also include information which has previously been revealed by the clients in this litigation. The court is inclined to find that as limited to communications with other than the clients, and to information and communications not previously disclosed by the clients in this litigation, the communications and documents would be discoverable. The court is also inclined to order that if any responsive material is withheld by the deponents, the deponents must serve a privilege log.

Deposition Subpoena issued on April 15, 2024 directed to Ali Reza Mirhosseini, Mirhosseini Law Group, is QUASHED. The order is WITHOUT PREJUDICE to a Deposition Subpoena being issued and served which complies with all statutory requirements, if necessary, given the outstanding Deposition Subpoena directed to the Custodian of Records of Mirhosseini Law Group, APC.

The Request is ordered limited to the production of documents and testimony concerning communications not involving clients Cross-Defendant Hootan Ataian and/or Amir Talebi which have not been otherwise disclosed by those persons. As so limited, deponent Custodian of Records of Mirhosseini Law Group, APC is ordered to produce all documents in deponent’s possession, custody or control responsive to Request No. 5 by July 19, 2024, and to testify at deposition concerning such communications.

If deponent intends to withhold any responsive document based on attorney client privilege, deponent must serve a Code-compliant privilege log. See CCP §2031.240 (b) and (c) (objection shall “[i]dentify with particularity any document…or electronically stored information falling within any category of item in the demand to which an objection is being made,” and “[s]et forth clearly the extent of, and the specific ground for, the objection,” and, if based on privilege or work product, “shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.”); see also Catalina Island Yacht Club v Superior Court (2015) 242 Cal.App.4th 1116, 1130 (“In general, … a privilege log typically should provide the identity and capacity of all individuals who authored, sent, or received each allegedly privileged document, the document's date, a brief description of the document and its contents or subject matter sufficient to determine whether the privilege applies, and the precise privilege or protection asserted.”)

Motion as to Requests Nos. 10-12, relating to communications with third party Talebi, is GRANTED IN PART and DENIED IN PART. The Request is ordered limited to the production of documents and testimony concerning communications which have been otherwise disclosed by third party Amir Talebi. As so limited, deponent Custodian of Records of Mirhosseini Law Group, APC is ordered to produce all documents in deponent’s possession, custody or control responsive to Request Nos. 10-12 by July 19, 2024, and to testify at deposition concerning such communications.