County of L.A. Bd. Supervisors v. Super. Ct. ( 2017 )

Filed 6/5/17; on remand from Supreme Court; pub. order 6/22/17 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
COUNTY OF LOS ANGELES No. B257230
BOARD OF SUPERVISORS et al.,
(Los Angeles County
Petitioners, Super. Ct. No. BS145753)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
ACLU OF SOUTHERN
CALIFORNIA et al.,
Real Parties in Interest.
ORIGINAL PROCEEDINGS in mandate. Luis A. Lavin,
Judge. Petition granted and matter remanded for further
proceedings.
Mary C. Wickham, John F. Krattli, Mark J. Saladino,
County Counsel, Roger H. Granbo, Assistant County Counsel,
Jonathan McCaverty, Deputy County Counsel; Greines, Martin,
Stein & Richland, Timothy T. Coates and Barbara W. Ravitz for
Petitioners.
Horvitz & Levy, Lisa Perrochet, Steven S. Fleischman and
Jean M. Doherty for Association of Southern California Defense
Counsel as Amicus Curiae on behalf of Petitioners.
No appearance for Respondent.
Peter J. Eliasberg; Davis Wright Tremaine, Jennifer L.
Brockett, Rochelle L. Wilcox, Colin D. Wells, Diana Palacios and
Nicolas A. Jampol for Real Parties in Interest ACLU of Southern
California and Eric Preven.
________________________________
This writ proceeding returns to us on remand from the
California Supreme Court. Real parties in interest the ACLU of
Southern California and Eric Preven (collectively the ACLU)
sought disclosure under the California Public Records Act (PRA)
of billing invoices sent to petitioner the County of Los Angeles
Board of Supervisors (the County) by its outside attorneys. The
superior court granted the ACLU’s petition for writ of mandate
and compelled disclosure, and the County challenged that
decision via a petition for a writ of mandate in this court. In our
original opinion, we concluded that the subject invoices were
confidential communications within the meaning of Evidence
Code section 952, and therefore were protected by the attorney-
client privilege and exempt from disclosure under Government
Code section 6254, subdivision (k). Accordingly, we granted the
County’s writ petition. The California Supreme Court granted
review, reversed our decision, and remanded for further
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proceedings. (Los Angeles County Bd. of Supervisors v. Superior
Court (2016) 2 Cal.5th 282, 300 (Los Angeles County).) Applying
the analysis mandated by Los Angeles County, and having
considered supplemental briefs from the parties, we grant the
County’s writ petition and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
1. The ACLU’s PRA request and the County’s response
Following several publicized inquiries into allegations of
excessive force in the Los Angeles County jail system, the ACLU
submitted a PRA request to the County and the Office of the
Los Angeles County Counsel for invoices specifying the amounts
billed by any law firm in connection with nine different lawsuits
alleging excessive force against jail inmates. The ACLU sought
the documents to enable it to “ ‘determine what work was being
done on the lawsuits, the scope of that work, the quality of the
representation, and the efficiency of the work.’ ”
The County agreed to produce copies of the requested
invoices related to three such lawsuits that were no longer
pending, with attorney-client privileged and work product
information redacted. It declined to provide invoices for the
remaining six lawsuits, which were still pending. According to
the County, the “detailed description, timing, and amount of
attorney work performed, which communicates to the client and
discloses attorney strategy, tactics, thought processes and
analysis” were privileged and therefore exempt from disclosure
under Government Code section 6254, subdivision (k), as well as
under the PRA’s “catchall” exemption, Government Code section
6255, subdivision (a). It also argued that the information
contained in the invoices was the same type of information
deemed to be confidential under Business and Professions Code
3
sections 6148 and 6149, and therefore these provisions supported
the conclusion that the privilege applied.
2. The ACLU’s petition for writ of mandate in the superior
court
The ACLU filed a petition for writ of mandate in the
superior court seeking to compel the County to “comply with the
[PRA]” and disclose the requested records for all nine lawsuits.
The ACLU averred: “Current and former jail inmates have
brought numerous lawsuits against the County and others for
alleged excessive force. The County has retained a number of law
firms to defend against these suits. It is believed that the
selected law firms may have engaged in ‘scorched earth’ litigation
tactics and dragged out cases even when a settlement was in the
best interest of the County or when a settlement was likely.
Given the issues raised by the allegations in these complaints
and the use of taxpayer dollars to pay for the alleged use of
scorched earth litigation tactics, the public has a right and
interest in ensuring the transparent and efficient use of taxpayer
money.” The ACLU argued that the billing records were not
generally protected by the attorney-client or work product
privileges, or by the Business and Professions Code sections, and
did not fall within any of the statutory exceptions to the PRA.
The superior court granted the petition. It held that the
County had failed to show the billing records were attorney-client
privileged communications or fell within the PRA’s “catchall”
exemption. Accordingly, it ordered the County to release “all
invoices issued by the County’s outside attorneys in the nine
cases specified” in the PRA request. However, it allowed that
“[t]o the extent any documents that are responsive to the
Requests reflect an attorney’s legal opinion or advice, or reveal an
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attorney’s mental impressions or theories of the case, such
limited information may be redacted.”
3. The County’s petition for writ of mandate in this court
and the ACLU’s petition for review
The County then filed a petition for writ of mandate in this
court. We granted the petition and vacated the superior court’s
ruling. Relying primarily on Costco Wholesale Corp. v. Superior
Court (2009) 47 Cal. 4th 725 (Costco), we concluded that the
invoices were privileged communications within the meaning of
Evidence Code section 952, and therefore exempt from PRA
disclosure. We did not reach the parties’ contentions regarding
the “catchall” exemption or Business and Professions Code
sections 6148 and 6149.
The Supreme Court then granted the ACLU’s petition for
review. A divided panel of the court reversed our decision and
remanded for further proceedings.
DISCUSSION
1. The Los Angeles County decision
The majority in Los Angeles County reasoned as follows.
The court first reiterated the PRA’s intent to increase freedom of
information, its constitutional underpinning, and the relevant
exceptions to the disclosure requirements. (Los Angeles County,
supra, 2 Cal.5th at pp. 290-292.) It then noted that the
fundamental purpose of the attorney-client privilege – which
holds a “special place” in California law – is to safeguard the
confidential relationship between client and attorney and
promote frank discussion between the two. (Id. at p. 292.)
Turning to the “key question” of whether “treating invoices
as sometimes nonprivileged” would undermine the fundamental
purpose of the attorney-client privilege, the court implemented a
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content-based test, reasoning that the attorney-client privilege
“turns on content and purpose, not form.” (Los Angeles County,
supra, 2 Cal.5th at pp. 293, 298.) Relying heavily on former Chief
Justice George’s concurring opinion in Costco, supra, 47 Cal. 4th
725, the court explained: “The attorney-client privilege only
protects communications between attorney and client made for
the purpose of seeking or delivering the attorney’s legal advice or
representation. Evidence Code section 952 twice states that the
privilege extends only to those communications made ‘in the
course of [the attorney-client] relationship,’ a construction
suggesting a nexus between the communication and the
attorney’s professional role. The Evidence Code also repeatedly
refers to ‘consultation’ between the attorney and client.
[Citations.] [¶] These references underscore that the privilege
does not apply to every single communication transmitted
confidentially between lawyer and client. Rather, the heartland
of the privilege protects those communications that bear some
relationship to the attorney’s provision of legal consultation.
[Citations.]” (Los Angeles County, at pp. 293-294, fn. omitted.)
Thus, “the inquiry turns on . . . the link between the content of
the communication and the types of communication that the
attorney-client privilege was designed to keep confidential. In
order for a communication to be privileged, it must be made for
the purpose of the legal consultation, rather than some unrelated
or ancillary purpose.” (Id. at p. 297.)
Invoices, the court concluded, “are generally not
communicated for the purpose of legal consultation. Rather, they
are communicated for the purpose of billing the client and, to the
extent they have no other purpose or effect, they fall outside the
scope of an attorney’s professional representation.” (Los Angeles
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County, supra, 2 Cal.5th at p. 295.) Although invoices have an
“ancillary relationship” to legal consultation and may convey
“some very general information about the process through which
a client obtains legal advice,” their “purpose is to ensure proper
payment for services rendered, not to seek or deliver the
attorney’s legal advice or representation.” (Id. at pp. 295, 296.)
When a lawyer bills his or her client, “the relationship evokes an
arm’s-length transaction between parties in the market for
professional services more than it does the diligent but discreet
conveyance of facts and advice that epitomizes the bond between
lawyer and client.” (Id. at p. 296.)
Nevertheless, Los Angeles County recognized that although
billing invoices are generally not made for the purpose of legal
representation, “the information contained within certain
invoices may be within the scope of the privilege. To the extent
that billing information is conveyed ‘for the purpose of . . . legal
representation’—perhaps to inform the client of the nature or
amount of work occurring in connection with a pending legal
issue—such information lies in the heartland of the attorney-
client privilege. And even if the information is more general,
such as aggregate figures describing the total amount spent on
continuing litigation during a given quarter or year, it may come
close enough to this heartland to threaten the confidentiality of
information directly relevant to the attorney’s distinctive
professional role. The attorney-client privilege protects the
confidentiality of information in both those categories, even if the
information happens to be transmitted in a document that is not
itself categorically privileged. When a legal matter remains
pending and active, the privilege encompasses everything in an
invoice, including the amount of aggregate fees. This is because,
7
even though the amount of money paid for legal services is
generally not privileged, an invoice that shows a sudden uptick in
spending ‘might very well reveal much of [a government agency]’s
investigative efforts and trial strategy.’ [Citation.] Midlitigation
swings in spending, for example, could reveal an impending filing
or outsized concern about a recent event.” (Los Angeles County,
supra, 2 Cal.5th at p. 297.)
Continuing, the court differentiated between pending and
concluded matters. “The same may not be true for fee totals in
legal matters that concluded long ago. In contrast to information
involving a pending case, a cumulative fee total for a long-
completed matter does not always reveal the substance of legal
consultation. The fact that the amounts in both cases were
communicated in an invoice transmitted confidentially from
lawyer to client does not automatically make this information
privileged. Instead, the privilege turns on whether those
amounts reveal anything about legal consultation. Asking an
agency to disclose the cumulative amount it spent on long-
concluded litigation—with no ongoing litigation to shed light on
the context from which such records are arising—may
communicate little or nothing about the substance of legal
consultation. But when those same cumulative totals are
communicated during ongoing litigation, this real-time disclosure
of ongoing spending amounts can indirectly reveal clues about
legal strategy, especially when multiple amounts over time are
compared.” (Los Angeles County, supra, 2 Cal.5th at p. 298.)
“Even while the scope of the attorney-client privilege remains
constant over time, the same information (for example, the
cumulative amount of money that was spent on a case) takes on a
different significance if it is revealed during the course of active
8
litigation. During active litigation, that information can threaten
the confidentiality of legal consultation by revealing legal
strategy. But there may come a point when this very same
information no longer communicates anything privileged, because
it no longer provides any insight into litigation strategy or legal
consultation.” (Id. at p. 298.) The court concluded 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. This latter category includes any invoice that reflects
work in active and ongoing litigation.” (Id. at p. 300.)
Consistent with its content-based test and conclusion that
invoices are not categorically privileged, Los Angeles County
requires PRA disclosure of nonprivileged content in an invoice
regardless of whether the invoice contains other, privileged
information. The court explained: “As with any of the PRA’s
statutory exemptions, ‘[t]he fact that parts of a requested
document fall within the terms of an exemption does not justify
withholding the entire document.’ [Citation.] What the PRA
appears to offer is a ready solution for records blending exempt
and nonexempt information: ‘Any reasonably segregable portion
of a record shall be available for inspection by any person
requesting the record after deletion of the portions that are
exempted by law.’ (§ 6253, subd. (a).) While this provision does
not dictate which parts of a public record are privileged, it
requires public agencies to use the equivalent of a surgical scalpel
to separate those portions of a record subject to disclosure from
privileged portions. At the same time, the statute places an
express limit on this surgical approach—public agencies are not
required to attempt selective disclosure of records that are not
9
‘reasonably segregable.’ [Citation.] To the extent this standard
is ambiguous, the PRA must be construed in ‘ “whichever way
will further the people’s right of access.” ’ [Citations.]”
(Los Angeles County, supra, 2 Cal.5th at p. 292.) Thus, the “ ‘fact
that parts of a requested document fall within the terms of an
exemption does not justify withholding the entire document.’ ”
(Id. at p. 300.)
2. Application here
Applying Los Angeles County, it is clear that insofar as the
superior court ordered PRA disclosure of invoices related to
pending matters, it erred. Los Angeles County teaches that
invoices related to pending or ongoing litigation are privileged
and are not subject to PRA disclosure. (Los Angeles County,
supra, 2 Cal.5th at p. 297 [“When a legal matter remains pending
and active, the privilege encompasses everything in an invoice,
including the amount of aggregate fees”].)
The ACLU represents that during the pendency of its
appeal, four of the six formerly pending cases have been
concluded. They aver that these “changed circumstances have
impacted the County’s obligations” under the PRA. As to the
invoices for closed matters that the County previously provided,
the ACLU complains the County used an incorrect, overbroad
standard when making redactions, and insists it is entitled to
“evidentiary review of those redactions.” It seeks disclosure of
specific billing entries and “ ‘descriptions of work performed’ ” to
enable it, for example, to determine “how much time the County’s
attorneys . . . spent opposing a motion to compel that the court
granted and for which the court found the [C]ounty’s legal
position for refusing to produce documents completely
untenable.” Thus, the ACLU suggests the “trial court should be
10
directed to evaluate the redactions” in the closed cases to
determine whether additional information should be disclosed.
The ACLU also avers that the trial court should be “directed to
evaluate the invoices” in the matters that have concluded during
the pendency of their appeal to determine if information must be
disclosed.
We agree that the matter must be remanded for a hearing
as to whether fee totals related to concluded matters must be
disclosed. Los Angeles County explained that “fee totals in legal
matters that concluded long ago” “may not” be confidential.
(Los Angeles County, supra, 2 Cal.5th at p. 298.) Whether such
fee totals must be disclosed under the PRA depends on “whether
those amounts reveal anything about legal consultation” or
“communicate[ ] anything privileged” by providing insight into
litigation strategy or legal consultation. (Ibid.) Thus, whether
disclosure of fee totals in long-concluded litigation is privileged is
a factual question for the trial court in the first instance. (See
generally Weingarten v. Superior Court (2002) 102 Cal. App. 4th
268, 277, fn. 1; Converse v. Fong (1984) 159 Cal. App. 3d 86, 93.)
The ACLU is incorrect, however, that the superior court
must review other redacted portions of the invoices in concluded
matters. Los Angeles County’s conclusion that information in
billing invoices is sometimes subject to PRA disclosure appears to
be limited to fee totals. Los Angeles County explained that
whether the attorney-client privilege applies turns on whether
amounts billed reveal anything about legal consultation. (Los
Angeles County, supra, 2 Cal.5th at p. 298.) Thus, billing entries
or portions of invoices that “provide[ ] any insight into litigation
strategy or legal consultation,” reveal the substance of legal
consultation, or reveal “clues about legal strategy,” are privileged.
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(Id. at pp. 297-298.) The court explained, “[t]o the extent that
billing information is conveyed ‘for the purpose of . . . legal
representation’—perhaps to inform the client of the nature or
amount of work occurring in connection with a pending legal
issue—such information lies in the heartland of the attorney-
client privilege.” (Id. at p. 297, italics added.) Billing entries or
portions of invoices that describe the work performed for a client
therefore fall directly in the “heartland” protected by the
privilege. As to such information, the Los Angeles County court
does not appear to have differentiated between current and
concluded matters. Instead, the court reasoned that such
information is “conveyed ‘for the purpose of . . . legal
representation.’ ” (Ibid.)
When discussing information that might be unprivileged
after a matter concludes, Los Angeles County pointedly did not
discuss billing entries or other aspects of an attorney’s invoice.
Instead, it expressly limited its analysis to “fee totals.”
(Los Angeles County, supra, 2 Cal.5th at pp. 298-300.) The
ACLU, of course, seeks information in the invoices precisely
because it wishes to discern the County’s legal strategy and
uncover the nature of the work performed. Under Los Angeles
County, these matters fall within the “heartland” of the privilege.
(See id. at pp. 297-298 [fee total information may become
disclosable when it “no longer provides any insight into litigation
strategy or legal consultation”].)
Other than fee totals, we can conceive of nothing likely to
be contained in a typical billing invoice besides time entries, that
is, information from the lawyer to the client regarding the
amount and nature of work performed. According to Los Angeles
County, information regarding such billing entries is within the
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scope of the privilege. (Los Angeles County, supra, 2 Cal.5h at
p. 297.)
Moreover, there is a logical reason why Los Angeles County
likely limited post-litigation disclosure to fee totals. A trial court
generally may not require a litigant to disclose assertedly
attorney-client privileged information in order to rule upon the
claim of privilege. (Costco, supra, 47 Cal.4th at p. 736; Citizens
for Ceres v. Superior Court (2013) 217 Cal. App. 4th 889, 911 [“In
general, the court cannot require disclosure for in camera review
of materials assertedly protected by attorney-client privilege”].)
As Costco explained: “Evidence Code section 915 provides, with
exceptions not applicable here, that ‘the presiding officer may not
require disclosure of information claimed to be privileged under
this division . . . in order to rule on the claim of privilege . . . .’
[Citation.] Section 915 also prohibits disclosure of information
claimed to be privileged work product under Code of Civil
Procedure section 2018.030, subdivision (b), but, as to the work
product privilege, if the court is unable to rule on the claim of
privilege ‘without requiring disclosure of the information claimed
to be privileged, the court may require the person from whom
disclosure is sought or the person authorized to claim the
privilege, or both, to disclose the information in chambers out of
the presence and hearing of all persons except the person
authorized to claim the privilege and any other persons as the
person authorized to claim the privilege is willing to have
present.’ [Citation.] No comparable provision permits in camera
disclosure of information alleged to be protected by the attorney-
client privilege.” (Costco, supra, 47 Cal.4th at p. 736, fn.
omitted.)
13
Consequently, and contrary to the ACLU’s demands, a trial
court faced with a claim that information contained in invoices is
protected by the attorney-client privilege is not permitted, absent
the consent of the party asserting the privilege, to examine the
invoices to determine whether specific billing entries reveal
anything about legal consultation or provide insight into
litigation strategy. (See Costco, supra, 47 Cal.4th at pp. 737, 740;
Los Angeles County, supra, 2 Cal.5th at p. 298 [information that
reveals the substance of legal consultation or legal strategy is
privileged].) Evidence Code section 915 thus would hamstring a
trial court’s efforts to determine whether specific invoice entries
are privileged. On the other hand, a court is more likely to be
able to rule on whether fee totals are privileged in light of the
passage of time even absent examination of the particular
invoices in question. Therefore, to the extent the trial court
ordered portions of invoices other than fee totals disclosed, it
erred.1
1 As was true in our prior opinion, we need not reach two
additional contentions the parties raised in their earlier briefing.
The County argued that invoices related to pending matters were
exempt from PRA disclosure because they fell within the PRA’s
“catchall” exemption (Gov. Code, § 6255, subd. (a)). In light of our
Supreme Court’s ruling that the attorney-client privilege
encompasses all content in invoices related to active matters
(Los Angeles County, supra, 2 Cal.5th at pp. 297, 300), we need
not address application of the catchall exemption.
Second, the parties disagreed about whether Business and
Professions Code sections 6148 and 6149 supported a conclusion
that the information contained in invoices was privileged under
Evidence Code section 952. Los Angeles County briefly addressed
application of Business and Professions Code sections 6148 and
14
DISPOSITION
The petition is granted. The superior court is directed to
vacate its order compelling the County to disclose records
requested in the ACLU’s July 1, 2013 PRA request. The court is
directed to conduct a hearing to determine whether fee totals in
any concluded matter should be disclosed. The parties are to
bear their own costs of this writ proceeding. (Cal. Rules of Court,
rule 8.493(a)(1)(B).)
ALDRICH, J.
We concur:
EDMON, P. J.
JOHNSON (MICHAEL), J.
6149 and concluded these provisions supported its conclusion
that invoices are not categorically privileged. The court
explained that because the Legislature defined fee agreements
and billing statements in one statutory section, but made only fee
agreements expressly subject to the attorney-client privilege, the
privilege “was not intended to protect both fee agreements and
invoices in the exact same way.” (Los Angeles County, supra,
2 Cal.5th at p. 299.) The Supreme Court’s reasoning makes it
unnecessary for us to address this question, and the parties do
not raise it in their briefs after remand.
 Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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Filed 6/22/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
COUNTY OF LOS ANGELES BOARD No. B257230
OF SUPERVISORS et al.,
(Los Angeles County
Petitioners, Super. Ct. No. BS145753)
v. ORDER CERTIFYING OPINION
FOR PUBLICATION
THE SUPERIOR COURT OF [NO CHANGE IN JUDGMENT]
LOS ANGELES COUNTY,
Respondent;
ACLU OF SOUTHERN CALIFORNIA
et al.,
Real Parties in Interest.
THE COURT:
The opinion in the above-entitled matter filed on June 5,
2017, was not certified for publication in the Official Reports. For
good cause it now appears that the opinion should be published in
the Official Reports and it is so ordered.
[There is no change in the Judgment.]
____________________________________________________________
EDMON, P. J. ALDRICH, J. JOHNSON (MICHAEL), J.*
 Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
2