Magallanes v. Superior Court CA2/4 ( 2021 )

Filed 12/15/21 Magallanes v. Superior Court CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
CAMILA LOPEZ MAGALLANES, B312794
a Minor, etc., (Los Angeles County
Super. Ct. No. BC684669)
Petitioner, (Malcom Mackey, Judge)
v. ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT]
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
LOS ANGELES UNIFIED
SCHOOL DISTRICT,
Real Party in Interest.
THE COURT:*
It is ordered that the opinion filed herein on November 17, 2021, be
modified as follows:
On page 3, in the first paragraph, delete “, including a statement
that Magallanes’s friend had pushed the child, causing her to fall on an
uneven floor.”
On page 4, in the first paragraph, delete “District counsel responded
that he assumed Magallanes’s counsel took issue with “the statement
where [Magallanes’s friend] pusher her and that’s why she fell.””
Also on page 4, in the third paragraph, delete the words “regarding
the cause of her fall.”
On page 10, in the second paragraph, delete “, provided by
Magallanes or her mother that the child was pushed by another student,.”
On page 14, in the second paragraph, delete “in which Magallanes or
her mother said that Magallanes was pushed by another student.”
On page 15, in the second paragraph, replace the phrase “that
Magallanes was purportedly pushed by another student,” with “provided
in the intake documents.”
There is no change in the judgment.
*MANELLA, P. J. WILLHITE, J. COLLINS, J.
2
Filed 11/17/21 Magallanes v. Superior Court CA2/4 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
CAMILA LOPEZ MAGALLANES, B312794
a Minor, etc., (Los Angeles County
Super. Ct. No. BC684669)
Petitioner,
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
LOS ANGELES UNIFIED SCHOOL
DISTRICT,
Real Party in Interest.
ORIGINAL PROCEEDINGS; Petition for Writ of Mandate from
an order of the Superior Court of Los Angeles County, Malcom Mackey,
Judge. Petition granted.
Blair & Ramirez, Oscar Ramirez, Matthew P. Blair; Parris Law
Firm, R. Rex Parris, Susan S. Baker, Eric N. Wilson, Khail A. Parris
and Daniel Eli for Petitioner.
No appearance for Respondent.
Hurrel Cantrall, Thomas C. Hurrell, Diane Martinez; Vanderford
& Ruiz, Rodolfo F. Ruiz, Maetha Jacobe and Ty Vanderford for Real
Party in Interest.
__________________________
Petitioner Camila Lopez Magallanes petitions for a writ of
mandate compelling the trial court to vacate its order granting an ex
parte application filed by real party in interest Los Angeles Unified
School District (the District) deeming the attorney-client privilege
waived as to statements appearing in attorney intake documents that
were disclosed to expert witnesses and opposing counsel. As explained
below, we grant the petition and issue the writ directing the trial court
to vacate its prior order deeming the attorney-client privilege waived,
and instead issue an order denying the District’s application.
BACKGROUND
1. The Lawsuit and Discovery Dispute
As alleged in her complaint, while attending school in 2017,
Magallanes (then seven years old) fell and struck her head on an
asphalt playground. Through her mother and guardian ad litem,
Magallanes sued the District for negligence, negligent supervision, and
dangerous condition of public property, alleging inter alia that the
school asphalt caused Magallanes to trip and fall.
2
In April 2017, Magallanes and her mother sought legal
representation from the Law Offices of Gary Berkovich. In connection
with its representation of Magallanes, the office generated
approximately 20 pages of intake documents. One of the documents
memorialized a description of the incident, as provided by Magallanes
or her mother, including a statement that Magallanes’s friend had
pushed the child, causing her to fall on an uneven floor.
The Law Offices of Gary Berkovich were replaced by Blair &
Ramirez as counsel for Magallanes. Between June and September
2019, a legal assistant for Blair & Ramirez emailed three of
Magallanes’s expert witnesses Dropbox links to access “Medical
Records,” “Academic Records,” “Responses to Discovery,” and “All
Documents produced by” the District in discovery. The intake
documents were inadvertently uploaded to one or more of the Dropbox
links.
Before one of Magallanes’s expert witnesses, Sharon Grandinette,
was set to be deposed, Blair & Ramirez’s legal assistant sent District
counsel Grandinette’s “expert file.” Among the hundreds of pages of
documents in the file were the intake documents.
While deposing Grandinette on May 5, 2021, District counsel
sought to mark as an exhibit portions of the intake documents. After
briefly reviewing the documents, Magallanes’s counsel interrupted the
deposition: “page 33 to 55 appear to be attorney-client privileged
documents. And so I don’t know how they were produced. I don’t know
if it was inadvertently or mistakenly produced, but those need to be
essentially destroyed because those are attorney-client protected
3
documents . . . and need to be excised from the file.” District counsel
responded that he assumed Magallanes’s counsel took issue with “the
statement where [Magallanes’s friend] pushed her and that’s why she
fell.” Magallanes’s counsel admonished District counsel that the
documents were privileged, inadvertently disclosed, and were to be
immediately destroyed. Both parties stipulated that they would refrain
from transmitting or using the intake documents until the court ruled
on whether disclosure of the intake documents waived the claim of
privilege.
2. The Ex Parte Applications
On May 11, 2021, the parties filed competing ex parte
applications, the District seeking an order deeming the claim of
privilege waived, and Magallanes seeking an order disqualifying
District counsel for improperly using privileged communications.
In its application, the District argued that Magallanes had waived
her right to claim the attorney-client privilege over the statement
regarding the cause of her fall, which was included in the intake
documents that were disclosed to expert witnesses and District counsel.
The application states in a footnote that the District had filed portions
of the intake documents “concurrently . . . under seal.” One page of the
intake documents wherein Magallanes or her mother summarized the
incident was filed through the District’s notice of lodging.
In her application, Magallanes argued that District counsel was
dutybound to refrain from reviewing and using privileged material that
had been inadvertently disclosed. In support, Magallanes’s counsel
4
attached to his declaration portions of the Grandinette deposition
transcript wherein counsel claimed the attorney-client privilege.
Counsel also declared that his office had inadvertently disclosed prior
counsel’s intake documents.
In her opposition to the District’s application, Magallanes listed
various portions of the intake documents to demonstrate their
conspicuous markings as privileged material. One of the redacted
intake documents states, “Premise Liability Sign-Up” with a disclaimer
“FOR OFFICE USE ONLY.” Another document states, “Retainer
Agreement” and appears under law firm letterhead. Yet another
document, also appearing under law firm letterhead, states “SOCIAL
NETWORKING SITES WARNING/ATTORNEY CLIENT PRIVILEGE.”
3. The Trial Court’s Ruling and Immediate Disclosure
The court held a hearing on both applications on Friday May 21,
2021. Following argument of counsel, the trial court found
Magallanes’s counsel had waived her claim of privilege, because “[o]nce
you tell someone the secret, it is gone.”
Following the court’s ruling the same day, the District notified one
of its expert witnesses, John Brault, of the intake documents. During
his deposition, taken the same day as the court’s ruling, Brault stated
he had received the intake documents around 10:00 that morning.
When asked by Magallanes’s counsel if anything in the intake
5
documents had altered his expert opinion,1 Brault stated they did not.
Brault did not know who filled out the summary of the incident.
4. Motion to Stay and Petition for Writ of Mandate
On May 24, 2021 (one court day after the trial court’s ruling),
Magallanes filed an ex parte motion to stay the court’s ruling on the
issue of waiver to allow Magallanes to file a petition for writ relief. The
court denied the application.
On June 2, 2021, Magallanes filed a petition for writ of mandate
and requested an immediate stay. In turn, we issued an order staying
trial court proceedings until further order of the court, and directed the
District to file a preliminary response to address the effect of: (1)
Magallanes’s publicly filing exhibits disclosing information claimed to
be privileged; and (2) assuming the disclosure was inadvertent,
Magallanes’s failure to take any appropriate action to preserve the
confidentiality of information.
In its preliminary response, the District argued Magallanes had
waived her claim of privilege by publicly filing the deposition transcript
of Grandinette in the trial court, and filing one page of the intake
documents as an exhibit to her writ petition. The District also argued
1 The parties have not clarified the subject area in which Brault was
designated an expert. However, in support of its preliminary response to our
prior order, the District filed portions of transcript taken during Brault’s
deposition. In that transcript, Brault stated he was an expert in gait.
6
that Magallanes had failed to take corrective action to seal the
document and transcript.
In her reply to the District’s preliminary response, Magallanes
argued that the statements appearing in the Grandinette deposition
transcript were not subject to a sealing order because they did not
constitute evidence (the only relevant statements appearing in the
transcript were made by counsel). Magallanes also argued her counsel
had inadvertently filed one of the intake documents with this court.2
On July 9, 2021, we issued an alternative writ requiring the trial
court either to: (1) after notice to the parties and an opportunity to be
heard, vacate its prior order granting the District’s ex parte application
to deem Magallanes’s attorney-client privilege waived, and enter a new
order denying that application; or (2) in the alternative, show cause
before this court why a peremptory writ of mandate ordering it to do so
should not issue.3
The trial court held a hearing on September 24, 2021, to decide
whether to change its prior order. Following argument of counsel, by
2 Based on a declaration by Magallanes’s counsel, counsel received a
service copy of the District’s notice of lodging that did not include any portion
of the intake documents. Because the service copy omitted the intake
documents, counsel assumed the court copy (which counsel copied for use as
an exhibit to Magallanes’s writ petition) would not include an intake
document. Counsel also relied on the District’s ex parte application, which
stated that the intake documents would be filed under seal.
3 In the same order, we denied Magallanes’s petition to the extent it
challenged the trial court’s denial of her request to disqualify District
counsel.
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written ruling the court reaffirmed its prior order deeming the attorney-
client privilege waived. The court found that Magallanes’s counsel’s
repeated production of privileged information, questioning of District
witnesses based on the information, and “counsel’s slow action towards
objecting to use of the information . . . infer[red] [sic] the client’s intent
to waive” the privilege. The court also reasoned that courts have
imputed knowledge and mistakes of attorneys to their clients in other
circumstances.
DISCUSSION
1. Governing Law and Standard of Review
The attorney-client privilege, as codified in Evidence Code section
950 et seq., protects confidential communications between a client and
her attorney made in the course of an attorney-client relationship.4
(Kerner v. Superior Court (2012) 206 Cal.App.4th 84, 116; Costco
Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 732 (Costco).)
The privilege is absolute; courts have no power to expand or limit the
privilege by creating exceptions. (McDermott Will & Emery LLP v.
Superior Court (2017) 10 Cal.App.5th 1083, 1100 (McDermott).)
Section 954 sets forth the attorney-client privilege. That section
states in part that “[s]ubject to Section 912,” the client may “refuse to
disclose, and to prevent another from disclosing, a confidential
communication between client and lawyer.”
4 Subsequent references to statutes are to the Evidence Code.
8
Section 912 in turn provides that “the right of any person to claim
a privilege provided by Section 954 . . . is waived with respect to a
communication protected by the privilege if any holder of the privilege,
without coercion, has . . . consented to disclosure made by anyone.
Consent to disclosure is manifested by any statement or other
conduct . . . indicating consent to the disclosure, including failure to
claim the privilege in any proceeding in which the holder has legal
standing and the opportunity to claim the privilege.” (§ 912, subd. (a).)
The party claiming the privilege has the burden of establishing a
prima facie showing of a confidential attorney-client communication.
(McDermott, supra, 10 Cal.App.5th at p. 1101.) Once that prima facie
showing has been made, “‘it is presumed the communication is
privileged and the burden shifts to the opponent to establish waiver, an
exception, or that the privilege does not for some other reason apply.’”
(Ibid., quoting DP Pham, LLC v. Cheadle (2016) 246 Cal.App.4th 653,
659–600 (DP Pham).)
The determination whether a communication is privileged, and
whether there has been a waiver of any such privilege, requires
consideration of fact and law. (McKesson HBOC, Inc. v. Superior Court
(2004) 115 Cal.App.4th 1229, 1236 (McKesson).) When there is
conflicting evidence on whether the client intended to waive the
attorney-client privilege, we review the court’s ruling for substantial
evidence. (McDermott, supra, 10 Cal.App.5th at p. 1102.) However,
when the historical facts are undisputed, the “ inquiry ‘requires a
critical consideration, in a factual context, of legal principles and their
underlying values.’ [Citation.] Therefore, the question is
9
predominately legal, and we independently review the trial court’s
decision.” (McKesson, supra, at p. 1236; accord, Regents of University of
California v. Superior Court (2008) 165 Cal.App.4th 672, 678 (Regents).)
2. Analysis
Here, it is undisputed that the statement at issue, provided by
Magallanes or her mother that the child was pushed by another
student, appeared in the intake documents, and that such statement
constitutes a privileged communication under section 954. The parties
dispute only whether that privilege was waived by (1) Magallanes’s
counsel’s disclosures of the statement to expert witnesses and opposing
counsel; (2) the designation of Magallanes’s retained experts as
witnesses at trial; and (3) her counsel’s failure to protect the statement
upon claiming the privilege. As we shall discuss, we find no waiver of
the attorney-client privilege.
Section 912 clearly provides that it is the holder of the privilege, in
this case Magallanes through her mother and guardian ad litem (§ 953),
who may waive the privilege. Because section 912 clearly provides that
it is only the client who may waive the privilege, this court previously
held in State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644,
652, 654 (State Comp.), that “‘waiver’ does not include accidental,
inadvertent disclosure of privileged information by [client’s] attorney.”
(Id. at p. 654.)
In State Comp., outside counsel for the plaintiff (State Fund)
inadvertently sent defense counsel hundreds of pages of civil litigation
10
claims forms conspicuously marked as attorney-client communications.
(70 Cal.App.4th at pp. 647–648.) The inadvertent disclosure of such
privileged communications was made in a large production of
documents. (Id. at p. 647.) When counsel for State Fund discovered the
error six months later, he contacted defense counsel and “demanded the
return of the . . . documents.” (Id. at p. 649.) When defense counsel
refused, counsel for State Fund gave ex parte notice that he would seek
an order compelling the return of the documents. (Ibid.) Counsel for
State Fund then filed an ex parte application for, inter alia, the
destruction or return of the documents, and sanctions against the
defendant and counsel for reviewing and using material clearly marked
as privileged. (Id. at p. 649.) The court agreed, and found State Fund
had not waived the privilege by the inadvertent disclosure; the court
also found defense counsel violated its ethical obligations to refrain
from using and return the documents to State Fund. (Id. at p. 651.)
On appeal from the trial court’s order, we held that the accidental,
inadvertent disclosure of the privileged information by State Fund’s
counsel did not result in a waiver by State Fund. (70 Cal.App.4th at
p. 653.) In reaching that conclusion, we looked to the words and
conduct of State Fund, the holder of the privilege, to determine whether
a waiver had occurred. (Id. at p. 652.) We found no affirmative conduct
on behalf of State Fund to consent to disclosure, and found significant
testimony from State Fund’s counsel that disclosure of the material was
unintentional and had been made despite the procedures it employed to
prevent disclosure of privileged materials. (Id. at p. 653.) We also
11
found “the promptness with which counsel for State Fund moved to
secure return of the documents indicated that there was no intent on
the part of State Fund to waive the privilege.” (Ibid.; accord, Ardon v.
City of Los Angeles (2016) 62 Cal.4th 1176, 1188 [“the disclosure
contemplated in . . . section 912 involves some measure of choice and
deliberation on the part of the privilege holder”].)
The circumstances in this case are materially similar to those in
State Comp. Magallanes’s counsel, through his legal secretary,
inadvertently disclosed documents conspicuously marked as attorney-
client communications in a large production of documents. The
privileged communications were included in one or more categories of
documents wholly unrelated to materials appearing in a litigation file.
Though individual review of the Dropbox links containing these
documents might have prevented disclosure, it is clear that neither
Magallanes nor her counsel intended to produce the intake documents
to expert witnesses or opposing counsel. In such context, the
inadvertent disclosure “merely demonstrates that the poor paralegal or
junior associate who was lumbered with the tedious job of going through
voluminous files and records in preparation for a document production
may have missed something.” (O’Mary v. Mitsubishi Electronics
America, Inc. (1997) 59 Cal.App.4th 563, 577.)
In the alternative, the District contends that Magallanes waived
her claim of privilege because she failed to take corrective action,
including the failure to seek a protective order or sealing order for the
privileged documents, the failure to claw back the documents, and the
questioning of Brault on the privileged information.
12
Though we agree that the holder of a privilege may waive it by
engaging in “‘“conduct inconsistent with claiming the protection”’”
(Regents, supra, 165 Cal.App.4th at p. 679), absent from the record in
this case is any evidence that Magallanes engaged in any conduct
inconsistent with claiming the privilege. The only failures identified by
the District are those of Magallanes’s counsel. It is not even clear
Magallanes knew of the inadvertent disclosures, the inadvertent public
filings, or the questioning of District witnesses. (Compare Calvert v.
State Bar (1991) 54 Cal.3d 765, 780 [finding implied waiver after client
failed to claim privilege at a hearing in which she was present and
consulted with her attorney] with DP Pham, supra, 246 Cal.App.4th at
p. 668 [no evidence established client had waived or authorized
bookkeeper to waive the privilege].) Because Magallanes’s counsel
continuously sought, albeit imperfectly, to protect the attorney-client
privilege, we shall not impute an attorney’s negligent conduct to the
client. (See Regents, supra, at p. 683 [the law does not require
“‘“strenuous or Herculean efforts”’” to preserve a claim of privilege].)
The District also contends that “any privilege over information
given to experts is ‘lost upon designation of the expert as a witness
because the decision to use the expert as a witness manifests the
client’s consent to disclosure of the information.’” (Quoting Shadow
Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067, 1079
(Shadow).)
It is true that disclosure of material protected by the attorney-
client privilege to an expert who is later designated as a trial witness
13
may constitute an implied waiver by the client. (Shadow, supra, 24
Cal.App.4th at p. 1079.) But such a waiver applies only to confidential
information that is relevant and likely to be used by the expert at trial.
(See National Steel Products Co. v. Superior Court (1985) 164
Cal.App.3d 476, 485 [upholding waiver of attorney-client privilege
because the information revealed was on the same “‘subject matter
about which’” the expert was a prospective witness]; Sanders v.
Superior Court (1973) 34 Cal.App.3d 270, 276, 279 (Sanders) [“the
information and opinion of an expert respecting the subject matter
about which he is a prospective witness” constitutes relevant evidence
subject to discovery].)
Here, Magallanes’s counsel inadvertently disclosed over 20 pages
of documents clearly marked as confidential and work product,
including attorney retainer agreements. It is undisputed that
Magallanes’s counsel did not send any of those documents for the
purpose of assisting an expert’s analysis of a disputed issue in the case.
Further, the subject matter of the privileged information here (a single
sentence in a summary of an intake interview in which Magallanes or
her mother said that Magallanes was pushed by another student) is not
relevant to the subjects about which the three experts were retained.
(See Sanders, supra, 34 Cal.App.3d at p. 277 [“‘When it becomes
reasonably certain an expert will give his professional opinion as a
witness on a material matter in dispute, then his opinion has become a
factor in the cause’”].) The retainer agreements for the retained experts
who inadvertently received the intake documents (David Lechuga, Paul
Broadus, and Sharon Grandinette) show that Grandinette is an
14
educational consultant who would opine on Magallanes’s educational
functioning; Lechuga is the director of the Neurobehavioral Clinic and
Counseling Center with accreditations for clinical and rehabilitation
psychology, and neuropsychology;5 and Broadus is an expert on
disability management services and the ability to work.
Given the subjects for which these experts were retained, the
District has failed to meet its burden to establish that in forming an
opinion, any of these experts used, or were likely to use, the information
that Magallanes was purportedly pushed by another student. (See
McDermott, supra, 10 Cal.App.5th at p. 1101 [once prima facie of
privilege has been made, the burden shifts to opponent to establish
waiver].) Thus, there is simply no basis in the record to uphold a
determination that Magallanes impliedly waived the attorney-client
privilege over confidential information that her counsel inadvertently
disclosed to three of her retained experts.
Finally, we disagree with the trial court’s ruling that the
knowledge or negligence of an attorney can be imputed to the client for
purposes of determining whether the client waived the attorney-client
privilege.6 The privilege “‘has been a hallmark of Anglo-American
5 The District has not identified any other portion of the record with
respect to Lechuga’s area of expertise.
6 The authority on which the court relied is inapposite to this case. (See
Harustak v. Wilkins (2000) 84 Cal.App.4th 208, 219 [imputing attorney
knowledge with regard to statute of limitations in trustee claims proceeding];
Stalberg v. Western Title Ins. Co. (1991) 230 Cal.App.3d 1223, 1231 [same but
in slander of title-breach of fiduciary duty claim]; In re Ivey (2000) 85
Cal.App.4th 793, 804–805 [imputing attorney knowledge of fees and costs to
15
jurisprudence for almost 400 years.’” (Costco, supra, 47 Cal.4th at
p. 732.) It “is a legislative enactment, which courts have no power to
expand or limit by creating exceptions” (McDermott, supra, 10
Cal.App.5th at p. 1100), including a purported exception imputing the
knowledge or negligence of an attorney to the client so as to fashion an
implicit waiver by the client.
Based on the foregoing, we conclude that Magallanes did not
waive her right to claim the attorney-client privilege.
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an alleged contemnor]; Sauer v. Superior Court (1987) 195 Cal.App.3d 213,
231 [imputing attorney’s wrongful withholding of material to client with
respect to discovery sanctions].)
16
DISPOSITION
The alternative writ is discharged. Let a peremptory writ of
mandate issue compelling the respondent superior court to vacate its
order of May 21, 2021 to the extent it found Magallanes waived the
attorney-client privilege over the intake documents, and instead enter
an order denying the District’s application to deem the privilege waived.
This court’s June 9, 2021 order staying all further proceedings in this
matter is discharged. Petitioner is awarded costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
COLLINS, J.
17