Judge: Thomas D. Long, Case: TC029184, Date: 2023-10-19 Tentative Ruling

Case Number: TC029184    Hearing Date: October 19, 2023    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On August 22, 2023, Brian L. Davidoff and Eric M. Sefton of Greenberg Glusker Fields Claman & Machtinger LLP (“Greenberg Glusker”) filed a Notice of Limited Scope Representation to represent Behnam Rafalian at the August 24, 2023 hearing on Judgment Creditor’s Motion to Amend Judgment to Add Buy Rite Electric, LLC as an Additional Judgment Debtor.

On August 29, 2023, Judgment Creditor Michael L. Magasinn filed an Application and Order for Appearance and Examination for Brian L. Davidoff or the PMK at Greenberg Glusker.

On September 27, 2023, Greenberg Glusker filed a motion for protective order that the examination not go forward.

Greenberg Glusker argues that the ORAP Application does not satisfy the requirements of Code of Civil Procedure section 708.120.  (Motion at pp. 4-7.)  According to Greenberg Glusker, the supporting affidavit “is conclusory and identifies no facts proving that Greenberg Glusker has any of Rafalian’s property or owes any debts to Rafalian.”  (Id. at p. 5.)

An ORAP application must include proof “by affidavit or otherwise to the satisfaction of the proper court that a third person has possession or control of property in which the judgment debtor has an interest or is indebted to the judgment debtor in an amount exceeding two hundred fifty dollars ($250).”  (Code Civ. Proc., § 708.120, subd. (a).)  Greenberg Glusker seemingly ignores the final portion of subdivision (a): “The affidavit in support of the judgment creditor's application may be based on the affiant’s information and belief.”  Hewitt’s declaration states, “On information and belief, the above-mentioned property includes, but is not limited to, monies that the Judgment Debtor, or entities that he owns and/or controls, or other persons on Judgment Debtor’s behalf have placed in Examinee accounts, including Examinee’s IOLTA Account, all of which are located in Los Angeles County.”  This statement on information and belief is allowable.  Hewitt additionally declares that the property “includes (a) all records reflecting payments made by Judgment Debtor, on behalf of Judgment Debtor or for Judgment Debtor’s benefit to, or held in trust by, Examinee; and (b) all monies paid to, or held in trust by, Examinee by (a) Judgment Debtor, (b) an entity owned and/or controlled by Judgment Debtor, (c) a third-party on Judgment Debtor’s behalf, and/or (d) for the benefit of Judgment Debtor.”  This sets forth facts about the information sought and where the property might be found.  Greenberg Glusker cites no binding authority to the contrary.

Greenberg Glusker argues that the Judgment Creditor cannot examine opposing counsel.  (Motion at p. 7.)  Greenberg Glusker cites only cases where opposing counsel was deposed during the merits of the litigation, not in post-judgment enforcement proceedings or in response to an ORAP Application under section 708.120.  The policy considerations about gamesmanship and the burden of litigation at those stages (see Motion at p. 8) are not present here.

To the extent that Greenberg Glusker’s argument is premised on the idea that “deposing counsel during the very proceeding in which he is providing representation is plainly a disruptive process” (Motion at p. 8, quoting Spectra-Physics, Inc. v. Superior Court (1988) 198 Cal.App.3d 1487, 1494), Greenberg Glusker is not—to the Court’s knowledge—continuing to represent the Judgment Debtor.  Greenberg Glusker asserts that it “remains counsel for Rafalian,” and “That Greenberg Glusker may (or may not) be representing Rafalian on other aspects of Magasinn’s judgment enforcement is not a matter about which Magasinn is entitled to disclosure.”  (Reply at pp. 5-6.)  However, Greenberg Glusker has not yet filed a general Notice of Appearance.

 The Notice of Limited Scope Representation stated that counsel would represent the party at the August 24, 2023 hearing and at any continuance of that hearing until submission of the order after hearing.  The Court issued its order on the same date.  Accordingly, Greenberg Glusker’s representation of the Judgment Debtor in this action has presumptively concluded.  Greenberg Glusker argues about the time to appeal the order and contends that “even without regard to the appeal period not having expired, one cannot reasonably infer that, simply because the hearing has been concluded, there are no legal ramifications created thereby which might need legal assistance.  To assert to the contrary is naïve.”  (Reply at pp. 5-6.)  However, this is contrary to the plain language of the Notice of Limited Scope Representation.

Greenberg Glusker argues that the Judgment Creditor had other means to obtain the information sought, such as interrogatories.  (Motion at p. 9.)  Judgment Creditor has already served written discovery, and Greenberg Glusker did not provide the requested information.  (Opposition at pp. 4-5; Leichter Decl. ¶¶ 5-7 & Ex. C.)

  Greenberg Glusker also argues that the information sought is privileged.  (Motion at pp. 10-11.)    Greenberg Glusker does not explain how records reflecting payments or monies held in its trust for the benefit of the Judgment Debtor are “communications protected by the attorney-client privilege.”  Moreover, “Business and Professions Code section 6149 states that only fee agreements ‘shall be deemed to be a confidential communication within the meaning of . . . Section 952 of the Evidence Code.’  This section makes no mention of billing statements or invoices.  The Legislature’s decision to define both fee agreements and billing statements in one section, while in the very next section subjecting only the former to the attorney-client privilege, suggests that the privilege was not intended to protect both fee agreements and invoices in the exact same way.”  (Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 299.)  “California courts have generally presumed that invoices for legal services are not categorically privileged.”  (Ibid.)

In sum, Greenberg Glusker has not shown a basis for a protective order preventing the ORAP.

The motion for protective order is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

         Dated this 19th day of October 2023