TENTATIVE RULING HEARING DATE: November 2, 2023 

 

CASE NUMBER: 20TRCV00137 

CASE NAME: Vincent Lucy v. Matthew R. Stall, et al. 

MOVING PARTY: Defendant, Matthew R. Stall, as Administrator of the Estate of Richard J. Stall, Jr., and as Trustee of The Richard J. Stall, Jr. Trust  

 

RESPONDING PARTY: Plaintiff, Vincent Lucy 

TRIAL DATE: February 20, 2024 

MOTION:¿ (1) Motion to Compel Further Responses to Plaintiff’s Request for Production of Documents No. 13 to 16 

 

Tentative Rulings: (1)  GRANTED, except as to tax returns which have an independent basis for privilege.  Oral argument as to a limited protective order as to the tax returns.    

 

 

  

I. BACKGROUND 

A.Factual

Plaintiff filed his Complaint on February 11, 2020. Plaintiff filed his Second Amended Complaint on July 28, 2021. Plaintiff alleges the following facts: Plaintiff was a longtime friend and client of an attorney named Richard J. Stall, Jr. (“decedent”).  He alleges that in 1993, Plaintiff and decedent entered into an oral agreement in which Plaintiff loaned decedent $348,418.02 at 10 percent interest. No specific time for repayment is specified other than payment upon demand. Plaintiff alleges that decedent dutifully forwarded to Plaintiff monthly interest payments. In 1996, Plaintiff and decedent entered into a written promissory note in which Plaintiff loaned decedent $150,000.00 at 10 percent interest. No specific time for repayment is specified in the note other than payment upon demand. In 2018, decedent died. In 2019, Plaintiff made claims to the Estate of Richard J. Stall, but each of the claims were denied.  

 

On May 19, 2022, Plaintiff filed a third amended complaint (“TAC”) alleging causes of action for: (1) Breach of Oral Contract; (2) Common Count – Account Stated; (3) Breach of Contract; (4) Common Count – Account Stated; (5) Breach of Written Contract; (6) Legal Malpractice; and (7) Breach of Fiduciary Duties. On January 17, 2023, this Court overruled the demurrer to the TAC. 

 

On July 26, 2023, Defendant notes it served his third set of requests for production seeking documents the Plaintiff contends support his affirmative claims in this matter, both with respect to his claims of liability and alleged damages. Defendant also notes the requests also seek information and documents relevant to the “case-within-a-case” analysis applicable to claims against attorneys, including communications and documents relating to Plaintiff’s interactions with the decedent during the alleged relevant time frame. Next, Defendant contends the requests also seek a copy of Decedent’s client file because defendant did not retain a copy of the legal file that was given to Plaintiff upon demand by Decedent while he was still alive.  Plaintiff notes that Defendant granted a two-week extension and served his responses on September 12, 2023. However, Defendant argues Plaintiff’s response contained boilerplate objections, stated that full tax returns would not be provided and agreed to provide “contents of Decedent’s legal file for the Plaintiff, and correspondence between Plaintiff and Decedent related to representation and legal advice.” Defendant also notes that Plaintiff stated he would only provide the documents if a protective order is signed by the parties. Defendant also argues that Plaintiff has not produced a single document responsive to Defendant’s request for production.  

 

B. Procedural
 

On October 10, 2023, Defendant filed this Motion to Compel Further Responses to Request for Production of Documents. On October 20, 2023 Plaintiff filed an opposition. On October 26, 2023, Defendant filed a reply brief.  

 

II. MEET AND CONFER  

 

Defendant notes that his counsel met and conferred with Plaintiff’s counsel by letter, phone call and emails from September 22, 2023 through October 3, 2023. However, Defendant notes that with the exception of the phone call, Plaintiff’s counsel has refused to respond to the meet and confer letter and has refused to produce any documents.    

 

III. ANALYSIS 

 

A. Legal Standard  

 

Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.420, subd. (a).) (Emphasis added.)¿¿ 

 

For good cause shown, the Court may issue any order that “justice requires to protect any party from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420, subd. (b).) Section 2025.420, subdivision (b), provides a nonexclusive list of directions that may be included in a protective order, including orders directing that the deposition may not be taken at all or that the deposition be taken at a different time. (Id.)

 

“ ‘[T]he issuance and formulation of protective orders are to a large extent discretionary”’ and a ruling on such motions will not be disturbed absent abuse of discretion. (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 316-17.) 

 

The burden is on the party seeking the protective order to show good cause for the order sought. (Id. at p. 318.) 

 

B. Discussion 

 

Here, Defendant seeks further verified responses to Requests for Production of Documents Nos. 13-16, and production of the requested documents. This Court notes in Plaintiff’s opposition, he contends that he is not arguing about the relevancy of the documents sought. However, Plaintiff’s response to Requests Nos. 13-16 clearly state: “Without waiver of those objections, the Responding Party will agree to provide Defendant with the contents of Decedent’s legal file for the Plaintiff, and correspondence between Plaintiff and Decedent related to representation and legal advice.” Defendant cites to Evidence Code § 958 noting that “[t]here is no privilege under this article as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.” 

 

This Court notes “Evidence Code section 958 was not intended to abrogate the privilege as to communications between the client and the lawyer representing the client when suit is filed against a former lawyer for malpractice. The exception is limited to communications between the client and the attorney charged with malpractice. ‘Clearly, in an attorney breach case this exception applies only where the alleged breach is by the attorney from whom the information is sought…Cases previously decided under Evidence Code section 958 have been limited to communications between the client and the attorney charged with the malpractice.” (Schlumberger Limited v. Superior Court (1981) 115 Cal.App.3d 386, 392-393 (emphasis added)(citations omitted).) 

 

If Plaintiff’s suit were against Matthew R. Stall’s firm, then the exception of Evidence Code § 958 would likely not apply. However, because this suit is brought against Decedent, the attorney for whom Plaintiff contends was his direct attorney, the exception is applicable. As such, Plaintiff’s attorney-client privilege objection has no merit as to RFPs 13 through 16. This Court’s ruling to GRANT the Motions to Compel Further Responses comport with the purpose behind the statute (i.e., that it would be unjust to permit a client to accuse his attorney of a breach of duty and to invoke the privilege to prevent the attorney from bringing forth evidence in defense of that charge.) (Solin v. O’Melveny & Myers, LLP (2001) 89 Cal.App.4th 451, 463-464.) 

 

Based on the above, Defendant’s Motion to Compel Further is GRANTED, verified further written responses are ordered within 30 days and production of the requested attorney-client files and communications are to be produced in that same time period.  However, the tax returns requested are subject to an independent basis for privilege from discovery.  It appears the parties may be willing to enter into a limited protective order with respect to the production of the tax returns at issue.  The Court requests or argument on that point.