Judge: Richard Y. Lee, Case: 30-2020-01146587, Date: 2022-08-04 Tentative Ruling

Defendants Berkadia Real Estate Advisors Inc. and Joe Leon (collectively “Defendants”) seek an order compelling Third-Party Brown & Streza, LLP (“B&S”) to comply with the Deposition Subpoena for Production of Business Records it served on them on or about August 17, 2021 (“Subpoena”).

Code Civ. Proc. § 1987.1 provides that the court, upon noticed motion, may make an order compelling compliance, quashing, or modifying the deposition subpoena.

Although the Notice of Motion contends it is seeking to compel B&S’ compliance with the Subpoena (which sought four category of documents, see Exh. E to Kearney Decl.), the Motion admits that B&S complied with the Subpoena and already produced responsive documents. Rather than seeking compliance with the Subpoena, Defendants seek an order compelling B&S to produce documents identified in its privilege log (252 documents) on the grounds the documents are not protected by the attorney-client and/or work product privilege. (See, Kearney Decl. Exh. D.)

Here, the Subpoena sought only four category of documents:

(1) A complete copy of B&S’s client file relating to

Idyllwillow’s purchase of the Leasehold Interest in the Property; (2) All documents relating to the Property; (3) All communications with Idyllwillow relating to the Property; and (4) All documents maintained in any client file related to the instant litigation. (See Kearney Decl., Ex. E.)

B&S complied with the Subpoena and produced a Privilege Log which identifies 252 separate documents. Defendants’ separate statement fails to identify which documents out of the 252 documents they seek to compel and why the stated privilege does not apply. Rather, the separate statement states that B&S should be ordered to produce the entire transactional file. 

However, in the Motion, Defendants contend that they do not seek to compel all of the documents identified in the Privilege Log, only the ones that relate to “financial metrics” or “real property tax calculation methodology issues.” Defendants contend they are unable to identify which documents pertain to those issues because B&S refuses to produce a more detailed privilege log.

When asserting claims of privilege or attorney work product protection, the objecting party must provide “sufficient factual information” to enable other parties to evaluate the merits of the claim, “including, if necessary, a privilege log.”  [See, e.g. Code Civ. Proc. § 2031.240(c)(1); Lopez v. Watchtower Bible & Tract Soc. of New York, Inc. (2016) 246 Cal.App.4th 566, 596-597, burden to show preliminary facts supporting application of privilege not met where Defendant failed to produce privilege log or identify any specific confidential communications.]

The Privilege Log produced by B&S adequately describes the document, the parties to the document, and the date the document was prepared.  Nearly all of the documents are communications with the client or between counsel within the same firm. The communications are subject to the attorney-client and/or work product privilege. Defendants have not stated any legal authority that would require B&S to inform Defendants which of the documents pertain to financial metrics or real property tax calculation methodology issues given that the Subpoena, as previously stated, did not specifically seek these categories of documents.

The Opposition points out that Defendants sought these very documents from Plaintiff during discovery; that Plaintiff objected based on privilege and produced a privilege log in an attempt to show that none of the protected communications dealt with tax advice; and Defendants then served a Subpoena on B&S to obtain the very documents they withheld based on privilege.

Defendants contend the attorney-client privilege was waived because Plaintiff placed B&S’ legal advice “at issue” by filing this lawsuit. This contention lacks merit. Plaintiff filed a lawsuit against Defendants, its real estate brokers, for fraud on the grounds they misrepresented and concealed the methodology for how real estate taxes were to be assessed on their Leasehold Interest. Plaintiff did file not suit against B&S – the attorneys retained by Plaintiff to assist it in documenting the acquisition of its Leasehold Interest.

Based upon the foregoing, Plaintiff’s privilege log is sufficient and Plaintiff has shown that the documents sought are privileged.  Defendant has failed to establish that any exception or waiver applies.  Accordingly, the motion is DENIED. 

Defendant’s alternative requests are beyond the scope of the motion and are also DENIED. 

All requests for sanctions are DENIED.

Moving Party to give notice.