Wednesday, December 13, 2017
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Court of Appeal:
Can’t Order Production of Attorney-Client Communiques
Peremptory Writ Issued in First Instance Based on ‘Urgency,’ ‘Clear Error’
By a MetNews Staff Writer
The Fourth District Court of Appeal has granted a peremptory writ in the first instance ordering the Orange Superior Court to scrap an order that a party provide communications with its attorney so a judge could review them in chambers and determine if they are privileged.
In an unpublished “By the Court” opinion issued Monday, Div. Three acted upon a writ petition filed one week earlier challenging a Dec. 1 order by Orange Superior Court Judge Thierry P. Colaw that the documents be produced by defendant Government Employees Insurance Co. (“GEICO”) within four days—the rush being that trial of plaintiff Moe Boutorabi’s action for breach of contract was to commence six days later.
The panel—comprised of Presiding Justice Kathleen E. O’Leary and Justices Richard D. Fybel and Raymond J. Ikola—noted that issuance of a writ in the first instance (without full briefing or oral argument) should occur only in the face of “unusual urgency” or “clear error under well-settled principles of law and undisputed facts.’
The opinion declares:
“Here, both rationales apply. First, the scheduled trial date is fast approaching, making delay in resolving this petition a serious imposition on the parties. Moreover, this is a Code of Civil Procedure section 36 case, entitled to special preference for prompt resolution because real party is elderly.”
Evidence Code §915(a)
Evidence Code §915(a) is cited in the opinion. That provision declares that a judge in a civil case “may not require disclosure of information claimed to be privileged” as an attorney-client communication “in order to rule on the claim of privilege.”
Also cited was the California Supreme Court’s 2009 opinion in Costco Wholesale Corp. v. Superior Court. There, then-Justice Kathryn Werdegar (now retired) said, for a unanimous court, that “a court may order disclosure of information in order to determine whether it is protected by the work product doctrine, but may not order its disclosure to determine if it is subject to the attorney-client privilege.”
Monday’s Court of Appeal opinion says:
“[W]e conclude petitioner is clearly entitled to relief. Respondent court granted a motion to review documents in camera to assess privilege. As set forth above, the court’s order is prohibited by statute and Supreme Court case law.”
Narrow Determination
However, the opinion specifies that there is no determination that the communications, in GEICO’s claims file, are, in fact, privileged. It notes that some communications between a lawyer and client—such as where an attorney provides business advice—are not protected.
Advice is offered that Colaw is not precluded from requiring GEICO “to come forward with additional non-privileged information (in a supplemental privilege log or at an evidentiary hearing) to assist in the determination of whether the contested documents are privileged.”
The case is Government Employees Insurance Co. v. Superior Court, G055721.
John T. Brooks, Karin Dougan Vogel, and Suzanne Y. Badawi of Sheppard, Mullin, Richter & Hampton represented GEICO. Cameron Y. Brock and Craig D. Rackohn of the Law Offices of Burg & Brock acted for Boutorabi.
Diversity Jurisdiction Claimed
The case was filed in Orange Superior Court on April 4, and was removed by GEICO to the U.S. District Court for the Central District of California on June 14 on the ground of diversity of citizenship. GEICO is a Maryland corporation and Plaintiff is a California resident.
On July 18, Judge David O. Carter remanded the case to the Orange Superior Court. He explained that diversity jurisdiction is reliant on the amount in controversy exceeding $75,000 and that “[g]enerally, a removing defendant must prove by a preponderance of the evidence that the amount in controversy satisfies the jurisdictional threshold.”
Carter pointed out:
“Plaintiff’s Complaint does not affirmatively establish an amount in controversy.”
GEICO argued that under 28 U.S.C. §1446(b)(3), removal may be based on filed litigation documents “or other paper” from which the amount in controversy may be determined, and that a June 1 email from Boutorabi’s lawyers to its lawyers reflects an amount in controversy higher than $75,000.
Carter said that district courts within the Ninth Circuit are divided on the issue of whether an email constitutes an “other paper,” but even if it does, “the email alone is insufficient proof to establish the requisite amount in controversy.”
That order came in Boutorabi v. Government Employees Insurance Company, Case No. SACV 17-1026-DOC.
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