Monday, December 22, 2025
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Court of Appeal:
Requiring Report of Attorney Fees Not Shielded by Privilege
Opinion Says Plaintiff Alleging Construction-Barrier Claims Not Entitled to Withhold Statutorily-Mandated Disclosure of Costs, Including Payments to Lawyer; Sanction of Dismissal for Failure to Divulge Held to Be Proper
By Kimber Cooley, associate editor
The Sixth District Court of Appeal held Friday that a trial judge did not err in sanctioning a party with dismissal for refusing to provide a statement revealing “the amount of…fees and costs incurred to date” as part of a statutorily-mandated early evaluation process in cases involving construction-related accessibility claims, rejecting the party’s assertion that the disclosure is shielded by the attorney-client privilege.
At issue is a provision of the Construction-Related Accessibility Standards Compliance Act, found at Civil Code §55.54(d), which provides that a trial court must grant a 90-day stay and schedule an early evaluation conference upon a timely request by the defendant after a plaintiff files a covered claim.
Subd, (d)(7) directs the plaintiff “to file with the court and serve on the defendant at least 15 days before the date of the conference a statement that includes,…for use solely for the purpose of the early evaluation conference,” the damages asserted and “[t]he amount of attorney’s fees and costs incurred to date, if any, that are being claimed.”
Justice Allison M. Danner authored Friday’s opinion, joined in by Presiding Justice Mary J. Greenwood and Justice Daniel H. Bromberg, saying:
“[W]e address whether the required disclosure of claimed attorney fees and costs under section 55.54(d)(7) violates a plaintiff’s attorney-client privilege. We conclude it does not.”
Complaint Filed
The question arose after Scott Johnson filed a complaint against Rubylin Inc., the owner of a Milpitas-area restaurant, in May of last year, alleging the presence of accessibility barriers at the location in violation of the Americans with Disabilities Act and the Unruh Civil Rights Act. The plaintiff sought statutory damages, “reasonable attorney fees,” and other relief.
Rubylin requested an early evaluation conference under §55.54. Last October, Santa Clara Superior Court Judge JoAnne McCracken directed Johnson to file a statement complying with the act’s requirements by Nov. 30, 2024.
On Dec. 9, 2024, Johnson filed his statement in the trial court, specifying that he was seeking $8,000 in damages and itemizing the specific barriers underlying his claims.
However, the plaintiff objected to the disclosure of the amount of attorney fees and costs, asserting that the information was privileged based on the 2016 California Supreme Court decision in Los Angeles County Board of Supervisors v. Superior Court (“LACBS”), which held that an outside firm’s invoices for work on currently pending litigation against the county are covered by the attorney-client privilege and exempt from Public Records Act disclosure.
Sanctions Requested
In January, Rubilyn’s lawyer, Century City attorney Karen Rooney, moved for sanctions against Johnson, who was represented by Dennis Price of the Pasadena-based firm Seabock Price. According to the defendant, settlement negotiations broke down due to the plaintiff’s failure to provide a specific number relating to fees and costs
On Jan. 16, McCracken held a hearing to address the defendant’s request as well as two other motions for sanctions against Johnson filed by unrelated parties relating to the plaintiff’s failure to comply with §55.54(d)(7).
The judge ruled that Johnson’s failure to disclose violated the act and the October order, and gave the plaintiff the choice between sanctions in the form of an order barring the recovery of attorney fees or dismissal of the action. Johnson elected the latter, and the case was dismissed, with prejudice, in January.
Friday’s opinion affirms the order, declaring:
“[W]e reject Johnson’s contentions regarding application of the attorney-client privilege to section 55.54(d)(7)’s requirement that a plaintiff disclose claimed attorney fees and costs. We also conclude the trial court did not violate Johnson’s due process rights in imposing sanctions.”
Scope of Privilege
Noting that “[t]he scope of the attorney-client privilege is determined by statute” and is to be “narrowly construed,” Danner pointed out that the LACBS case dealt with a request for the billing records made under the Public Records Act (“PRA”).
Under that statutory scheme, agencies are permitted to withhold records if the disclosure would be “exempted or prohibited” by federal or state law, “including…provisions of the Evidence Code relating to privilege.”
Saying that, in LACBS, the state high court cautioned that “the contents of an invoice are privileged only if they either communicate information for the purpose of legal consultation or risk exposing information that was communicated for such a purpose,” Danner reasoned that the case is inapplicable to the fee statement required by §55.54(d)(7). She added:
“Unlike the PRA, which ‘expressly mak[es an] exception[] to disclosure for privileged communications’…, the Act at issue here contains no similar language….[S]ection 55.54(d)(7) plainly directs the plaintiff to disclose to the defendant the claimed amount of attorney fees and costs incurred. Neither section 55.54(d)(7) nor the remainder of the Act includes any privilege-based exception to the disclosure obligation.”
Addressing sanctions, the jurist remarked:
“By refusing to provide Rubylin with the amount of claimed attorney fees and costs, Johnson violated the trial court’s October 2024 order. If a party fails to comply with a court’s order under section 55.54, the court may, in its discretion, impose sanctions on the party.”
As to the plaintiff’s contention that his due process rights were violated by the sanctions, Danner said:
“Johnson was heard on the issue of privilege during the January 2025 sanctions hearing….The Act does not require the trial court to give the noncompliant party the opportunity to ‘cure’ their noncompliance…before imposing sanctions….Johnson does not cite any provision of the Act or any other pertinent legal authority to support his contention.”
The case is Johnson v. Rubylin Inc., 2025 S.O.S. 3764.
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