League of California Cities v. Superior Court , 194 Cal. Rptr. 3d 444 ( 2015 )

Filed 10/28/15
CERTIFIED FOR PUBLICATION
COURT OF APPEAL - FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
LEAGUE OF CALIFORNIA CITIES, D067969
Petitioner,
v. (Super. Ct. No. 37-
2014-00000217-CU-MC-CTL)
THE SUPERIOR COURT OF
SAN DIEGO COUNTY,
Respondent;
SAN DIEGANS FOR OPEN
GOVERNMENT et al.,
Real Parties in Interest.
PETITION for a writ of mandate challenging an order of the Superior Court of
San Diego County, Joel R. Wohlfeil, Judge. Petition granted, remanded for further
proceedings.
Best Best & Krieger, Shawn D. Hagerty, Matthew L. Green and Rebecca J.
Andrews for Petitioner.
No appearance for Respondent.
Briggs Law, Cory J. Briggs and Anthony N. Kim for Real Parties in Interest.
The California Public Records Act (Gov. Code, § 6250 et seq., the Act) provides
that "a party" may file a petition for the issuance of an extraordinary writ to challenge an
order of the trial court either directing or refusing disclosure under the Act. (Gov. Code,
§ 6259, subd. (c); undesignated statutory references are to this code.) In this case, a
nonparty to the action filed a petition for an extraordinary writ in this court arguing it was
a real party in interest that would be irreparably damaged by the trial court's order to
disclose records allegedly protected from disclosure by the attorney-client privilege and
attorney work product doctrine. We conclude the term "a party," as used in the Act, is
not limited to an actual party to the action. Accordingly, the nonparty here has standing
to file the instant petition challenging the trial court's order.
We further conclude the trial court erred by not conducting an in camera review of
the documents as requested by the party asserting the documents were exempt from
disclosure. Accordingly, we grant the petition and remand the matter for further
proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Jan L. Goldsmith is the San Diego City Attorney. League of California Cities
(League) is an association of 473 California cities and their public officials, which,
among other purposes, advocates to protect and restore local control for cities to provide
for the public health, safety, and welfare of their residents. The League engages in legal
advocacy through its Legal Advocacy Program. The League's Legal Advocacy
Committee (LAC) administers the Legal Advocacy Program by reviewing pending
appellate cases to determine if the cases involve issues that may impact cities on a
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statewide basis. The LAC then makes recommendations to the League on whether it
should participate in the action or weigh in as amicus curiae on behalf of California cities.
The San Diego City Attorney is a permanent member of the LAC.
Real Party in Interest, San Diegans for Open Government (SDOG), submitted a
request under the Act to the City of San Diego (the City) seeking "[a]ny and all e-mails
sent to or from [Jan Goldsmith's personal e-mail account] . . . between January 1, 2008
and December 31, 2013, and that pertain in any way to the official business of the City of
San Diego." Among other records, the City asserted an exemption to the disclosure of e-
mails between a purported legal assistant for the League and attorney members of the
League (the e-mails) on the grounds they were not public records because they did not
concern city business, or were otherwise privileged.
SDOG filed a petition for writ of mandate seeking declaratory and injunctive relief
against the City and Goldsmith to compel disclosure of the e-mails. In a minute order,
the trial court directed the City to provide SDOG with a privilege log identifying the
documents not produced, along with the legal objection for not producing the documents.
The City produced a privilege log, identifying and bates-numbering nonresponsive,
privileged or exempt documents, which included the e-mails. After SDOG challenged
some of the claimed exemptions, the City prepared a further privilege log addressing
these documents.
After considering the parties' briefing, the trial court declined to perform an in
camera review of the e-mails. It found the City failed to meet its burden of
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demonstrating that the e-mails were privileged or exempt under the Act, and ordered the
City to produce the e-mails by a certain date.
The League filed the instant petition for a peremptory writ of mandate or
prohibition in the first instance, or an alternative writ or order to show cause seeking to
vacate that part of the court's order requiring disclosure of the e-mails. We stayed the
trial court's order and issued an order to show cause.
DISCUSSION
I. Standing
Subdivision (c) of section 6259 provides that a court order either directing or
refusing disclosure is not an appealable judgment or order, "but shall be immediately
reviewable by petition to the appellate court for the issuance of an extraordinary writ.
Upon entry of any order pursuant to this section, a party shall, in order to obtain review
of the order, file a petition within 20 days after service upon him or her of a written
notice of entry of the order, or within such further time not exceeding an additional 20
days as the trial court may for good cause allow." (Italics added.)
The League concedes it was not "a party" to the trial court proceedings, but asserts
it has standing to seek writ relief in this court because it holds the privilege to prevent the
disclosure of confidential communications with its counsel and is directly and
prejudicially affected by the trial court's order to disclose the e-mails. SDOG disagrees,
noting that the right to challenge an order under the Act is limited to a "party," which it
interprets as meaning an actual party to the action rather than a real party in interest.
(§ 6259, subd. (c).)
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The issue before us is one of statutory interpretation. Our task is to determine the
intent of the lawmakers so as to effectuate the purpose of the statute. (POET, LLC v.
State Air Resources Bd. (2013) 218 Cal. App. 4th 681, 749.) We first scrutinize the actual
words of the statute, giving them their usual, ordinary meaning. (Ibid.) If the statutory
language is clear and unambiguous, meaning it is susceptible to only one reasonable
construction, courts adopt the literal meaning of that language, unless that literal
construction would frustrate the purpose of the statute or produce absurd consequences.
(Ibid.) When statutory language is ambiguous, we must select the construction that
comports most closely with the apparent intent of the Legislature, with a view to
promoting rather than defeating the general purpose of the statute. (Ibid.) In interpreting
ambiguous wording we are guided by the fundamental principle that courts construe
those words in the context and with reference to the entire scheme of law of which they
are a part. (Ibid.) In resolving statutory ambiguity courts also may be aided by the
ostensible objects to be achieved by the legislation, the evils to be remedied, the
legislative history, and public policy. (Ibid.) We start our review by examining the Act.
"Prior to 1984, review of a trial court order either directing disclosure of a public
record or refusing disclosure was by appeal. In 1984, however, the Legislature
substituted a writ procedure for the appellate process by amending section 6259 to
provide as follows: 'In an action filed on or after January 1, 1985, an order of the court,
either directing disclosure by a public official or supporting the decision of the public
official refusing disclosure, is not a final judgment or order within the meaning of Section
904.1 of the Code of Civil Procedure from which an appeal may be taken, but shall be
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immediately reviewable by petition to the appellate court for the issuance of the
extraordinary writ of review as defined in Section 1067 of the Code of Civil Procedure.' "
(Times Mirror Co. v. Superior Court (1991) 53 Cal. 3d 1325, 1332-1333.)
In 1990, the Legislature amended section 6259 again to "eliminate the reference to
the 'writ of review,' and to provide instead that superior court orders under the [Act] 'shall
be immediately reviewable by petition to the appellate court for issuance of an
extraordinary writ.' " (Powers v. City of Richmond (1995) 10 Cal. 4th 85, 111-112.) The
Legislature made this change to expedite the review process and thereby make the
appellate remedy more effective. (Id. at p. 112.) The 1990 amendment also added two
new provisions: (1) that "a party" must file a petition for extraordinary writ within 10
days after receipt of notice of the trial court order; and (2) no stay of the trial court order
shall be permitted "unless the petitioning party demonstrates it will otherwise sustain
irreparable damage and probable success on the merits." (Stats. 1990, ch. 908, § 2, subd.
(c), p. 3855.) A 1993 amendment later increased the time for filing the writ petition from
10 days to 20 days. (Powers v. City of Richmond, at p. 112, fn. 18.)
A petitioner must have standing in order to invoke the power of a court to grant
writ relief. (Waste Management of Alameda County, Inc. v. County of Alameda (2000)
79 Cal. App. 4th 1223, 1232 (Waste Management).) "Code of Civil Procedure section
1086 expresses the controlling statutory requirements for standing for mandate: 'The writ
must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the
ordinary course of law. It must be issued upon the verified petition of the party
beneficially interested.' " (Brotherhood of Teamsters & Auto Truck Drivers v.
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Unemployment Ins. Appeals Bd. (1987) 190 Cal. App. 3d 1515, 1521.) Code of Civil
Procedure section 1069, governing certiorari proceedings (Code Civ. Proc., § 1067),
similarly requires the petition be made by "the party" beneficially interested.
Despite the clear references in these statutes to "the party," our high court noted it
is well established that one who petitions for an extraordinary writ need not have been a
party to the action below if the one seeking relief demonstrates a beneficial interest in the
litigation or is affected by the outcome. (Peery v. Superior Court (1981) 29 Cal. 3d 837,
841 (Peery).) In other words, our high court rejected the notion that the statutory
reference to "the party" in Code of Civil Procedure sections 1086 and 1069 necessarily
referred to the actual parties to the action. (Peery, at p. 841.)
"The requirement that a petitioner be 'beneficially interested' has been generally
interpreted to mean that one may obtain the writ only if the person has some special
interest to be served or some particular right to be preserved or protected over and above
the interest held in common with the public at large." (Carsten v. Psychology Examining
Com. (1980) 27 Cal. 3d 793, 796.) The petitioner's interest must be direct and substantial.
(Waste Management, supra, 79 Cal.App.4th at p. 1233.) Writ relief is not available if the
petitioner gains no direct benefit from the writ's issuance, or suffers no direct detriment
from its denial. (Id. at p. 1232.)
Additionally, the holder of the attorney-client privilege has standing to assert the
privilege in a proceeding to prevent disclosure and there is no need to intervene to
become an actual party to the lawsuit in order to be able to assert the privilege. (Mylan
Labs. Inc. v. Soon-Shiong (1999) 76 Cal. App. 4th 71, 80.) While the holder of the
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protection from disclosure granted by the attorney work product doctrine is the attorney,
the client has standing to assert the work-product protection on behalf of the attorney if
the attorney is absent. (Fellows v. Superior Court (1980) 108 Cal. App. 3d 55, 64-65.)
Here, the League asserts the e-mails ordered to be disclosed by the trial court are
protected by the attorney-client privilege and attorney work product doctrine. Thus, as a
general matter, the League should have standing to file the instant petition as it has an
obvious interest in protecting from disclosure alleged confidential communications.
Without any analysis, SDOG assumes the reference to "a party" in subdivision (c) of
section 6259 refers to an actual party to the action rather than a real party in interest.
Because the League failed to intervene in the action to become an actual party, SDOG
asserts the League lacks standing to file the instant writ petition. We reject this assertion.
The Legislature is presumed to be aware of existing laws and judicial decisions
and to have enacted or amended statutes in light of this knowledge. (People v. Overstreet
(1986) 42 Cal. 3d 891, 897.) As our previous discussion demonstrates, it has long been
established that the right to seek writ review under general statutes is not limited to the
actual parties to the action, but extends to anyone with a beneficial interest in the action.
We have examined the legislative history for the 1990 amendment, but it provides no
insight into the Legislature's use of the term "a party." (The League's request for judicial
notice of legislative materials relating to section 6259 is granted.) Where, as here, "the
language of a statute uses terms that have been judicially construed, ' "the presumption is
almost irresistible" ' that the terms have been used ' "in the precise and technical sense
8
which had been placed upon them by the courts." ' " (People v. Weidert (1985) 39 Cal. 3d
836, 844-846.)
Accordingly, we conclude the Legislature's reference to "a party" in the Act is not
limited to the actual parties to the action, but includes nonparties with a beneficial interest
in the litigation or who are affected by the outcome. Thus, we reject SDOG's assertion
that the League lacks standing to challenge the trial court's order.
II. Merits
A. The Act
The Act "provides for the inspection of public records maintained by state and
local agencies" (California State University, Fresno Assn., Inc. v. Superior Court (2001)
90 Cal. App. 4th 810, 822), and embodies "a strong policy in favor of disclosing public
records." (Dixon v. Superior Court (2009) 170 Cal. App. 4th 1271, 1275.) Because the
disclosure of public records has the potential to impact individual privacy, any public
records request involves two fundamental competing interests — prevention of secrecy in
government and protection of individual privacy. (City of San Jose v. Superior Court
(1999) 74 Cal. App. 4th 1008, 1016-1017 (City of San Jose).) Thus, the right to disclosure
of public records is not absolute. (Id. at p. 1017.) Among the materials expressly exempt
from disclosure under the Act are records protected by the attorney-client privilege or
attorney work product doctrine. (§ 6254, subd. (k); Fairley v. Superior Court (1998) 66
Cal. App. 4th 1414, 1422, fn. 5.) The government agency opposing disclosure bears the
burden of proving that one or more exemptions apply in a particular case. (Rogers v.
Superior Court (1993) 19 Cal. App. 4th 469, 476.) We independently review the trial
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court's rulings on questions arising under the Act and will uphold the trial court's factual
determinations if supported by substantial evidence. (CBS Broadcasting Inc. v. Superior
Court (2001) 91 Cal. App. 4th 892, 905-906.)
B. Public Records
The League contends the e-mail communications at issue are not public records
because Goldsmith received the e-mails in his role as a member of the League's LAC and
the LAC's role is to further the statewide mission of the League, a private organization.
The term " '[p]ublic records' includes any writing containing information relating to the
conduct of the public's business prepared, owned, used, or retained by any state or local
agency regardless of physical form or characteristics." (§ 6252, subd. (e).) " ' "Any
record required by law to be kept by an officer, or which he keeps as necessary or
convenient to the discharge of his official duty, is a public record." ' " (San Gabriel
Tribune v. Superior Court (1983) 143 Cal. App. 3d 762, 774.)
We grant the SDOG's request for judicial notice of the San Diego City Charter
(City Charter) and San Diego City Administrative Regulation Number 90.62. The City
Charter states the City Attorney "shall be the chief legal adviser of, and attorney for the
City" and that the City Attorney and his deputies must "devote their full time to the duties
of the office and shall not engage in private legal practice during the term for which they
are employed by the City . . . ."
Here, although the e-mails were sent to Goldsmith's personal account, Goldsmith
deemed them as pertaining to his work as the City Attorney and as city business by
forwarding them to his city account. This constitutes strong evidence that the e-mails,
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retained by Goldsmith in his city account, pertain to his work as the City Attorney and
constitute public records. Significantly, Goldsmith is a member of the League's LAC
based solely on his role as the City's attorney. Presumably, any action Goldsmith took
regarding the e-mails was based on his role as the City attorney to further not only the
League's interests, but also the City's interests.
Additionally, during Goldsmith's tenure as City Attorney, the City enacted an
administrative regulation, signed by Goldsmith and a number of other individuals,
limiting use of the City's computer system to "work-related City business purposes only"
and warning that "[p]ersonal files should not to be [sic] stored on City equipment."
Knowing of this new policy, Goldsmith continued forwarding the e-mails from his
personal account to his city account; again, presumably because they pertained to his
work as the City Attorney. We are not persuaded by the League's argument that, because
it is a private organization and LAC's role is to further the statewide mission of the
League, Goldsmith's participation in LAC was not connected to his work as the City
Attorney or city business. Accordingly, we reject the League's argument that the e-mails
are not public records.
(As an aside, we note that our high court will be addressing the question whether
written communications pertaining to city business, including e-mail and text messages,
which are sent or received by public officials and employees on their private electronic
devices using their private accounts, are not stored on city servers, and are not directly
accessible by the City, are "public records" within the meaning of the Act. (City of
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San Jose v. Superior Court (2014) 225 Cal. App. 4th 75, review granted May 22, 2014,
S218066.)
C. Attorney-Client Privilege
1. Legal Principles
The attorney-client privilege is "a privilege to refuse to disclose, and to prevent
another from disclosing, a confidential communication between client and lawyer . . . ."
(Evid. Code, § 954.) A "client" within the meaning of the attorney-client privilege is "a
person who, directly or through an authorized representative, consults a lawyer for the
purpose of retaining the lawyer or securing legal services or advice [from the lawyer in
the lawyer's] professional capacity." (Evid. Code, § 951.) A " 'confidential
communication between client and lawyer' means information transmitted between a
client and his or her lawyer in the course of [the attorney-client] relationship and in
confidence by a means which, so far as the client is aware, discloses the information to no
third persons other than those present to further the [client's] interest . . . in the
consultation or those to whom disclosure is reasonably necessary for transmission of the
information or the accomplishment of the purpose for which the attorney is consulted."
(Evid. Code, § 952.) "[T]he privilege applies not only to communications made in
anticipation of litigation, but also to legal advice when no litigation is threatened."
(Roberts v. City of Palmdale (1993) 5 Cal. 4th 363, 371.)
"The party claiming the privilege has the burden of establishing the preliminary
facts necessary to support its exercise, i.e., a communication made in the course of an
attorney-client relationship." (Costco Wholesale Corp. v. Superior Court (2009) 47
12
Cal. 4th 725, 733 (Costco).) If the party claiming the privilege presents facts supporting a
prima facie claim of privilege, "the communication is presumed to have been made in
confidence and the opponent of the claim of privilege has the burden of proof to establish
the communication was not confidential or that the privilege does not for other reasons
apply." (Ibid.) To evaluate whether the party claiming the privilege has made a prima
facie showing, the focus is on the purpose of the relationship between the parties to a
communication. (Id. at pp. 739-740.) "[W]hen the party claiming the privilege shows
the dominant purpose of the relationship between the parties to the communication was
one of attorney-client, the communication is protected by the privilege." (Clark v.
Superior Court (Verisign, Inc.) (2011) 196 Cal. App. 4th 37, 51 (Clark).) "Once that party
establishes facts necessary to support a prima facie claim of privilege, the communication
is presumed to have been made in confidence and the opponent of the claim of privilege
has the burden of proof to establish the communication was not confidential or that the
privilege does not for other reasons apply." (Costco, at p. 733.)
An analysis of the attorney-client privilege begins with an identification of the
attorney, the client and the communication sought to be protected. (See Evid. Code,
§§ 950-952.) The fact the client or attorney intended the material transmitted to be
confidential is not dispositive; rather, there must be a communication between attorney
and client. (Suezaki v. Superior Court (Crawford) (1962) 58 Cal. 2d 166, 176.) Stated
differently, the attorney-client privilege attaches only if the information is transmitted "in
the course of the attorney-client relationship." (Evid. Code, § 952.) "For example, the
privilege is not applicable when the attorney acts merely as a negotiator for the client or
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is providing business advice [citation]; in that case, the relationship between the parties to
the communication is not one of attorney-client." (Costco, supra, 47 Cal.4th at p. 735.)
Although the Act allows in camera inspection of some documents claimed to be
exempt, in camera review of information claimed to be privileged cannot be compelled
by a trial court for the purpose of making an initial determination that a communication is
subject to the claimed privilege. (§ 6259, subd. (a); Evid. Code, § 915, subd. (a); Costco,
supra, 47 Cal.4th at p. 739.) Rather, the trial court must make an initial assessment of the
facts, to determine whether the dominant purpose of the relationship was an attorney-
client relationship. (Costco, at pp. 739-740.) When the dominant purpose of the
relationship is "one of attorney-client, the communication is protected by the privilege."
(Clark, supra, 196 Cal.App.4th at p. 51.)
To aid the trial court in determining the preliminary fact that a communication was
made during the course of an attorney-client relationship, the party claiming the privilege
may "request an in camera review of the communications to aid the trial court in making
that determination, but the trial court [can]not order disclosure of the information over
the . . . objection" of the party claiming the privilege. (Costco, supra, 47 Cal.4th at
p. 740.) Additionally, once the trial court makes a tentative decision that a
communication is not privileged, the party claiming the privilege may disclose the
content of the communication in camera to attempt to prevent the disclosure. (Costco, at
pp. 738-739.)
We note that allowing in camera review of alleged privileged communications
based on the request of the party holding the privilege appears inconsistent with the
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Costco court's statement that Evidence Code "section 915 prohibits disclosure of
information claimed to be privileged in order to determine if a communication is
privileged." (Costco, supra, 47 Cal.4th at p. 740.) We reconcile these seemingly
inconsistent positions by referring to the Court's stated holding "that a court may not
order disclosure of a communication claimed to be privileged to allow a ruling on the
claim of privilege . . . ." (Id. at p. 739, italics added.) Thus, while a trial court may not
order disclosure of a communication claimed to be privileged to allow a ruling on the
claim of privilege, the holder of the privilege may request an in camera review of alleged
privileged communications to aid the trial court in making the preliminary fact
determination that a communication was made during the course of an attorney-client
relationship or to attempt to prevent disclosure of the communication.
We review the trial court's conclusion that a document is subject to the attorney-
client privilege to determine whether it is supported by substantial evidence. (People v.
Gionis (1995) 9 Cal. 4th 1196, 1208.) "When the facts, or reasonable inferences from the
facts, shown in support of or in opposition to the claim of privilege are in conflict, the
determination of whether the evidence supports one conclusion or the other is for the trial
court, and a reviewing court may not disturb such finding if there is any substantial
evidence to support it." (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal. 2d 723,
729.)
2. Analysis
Here, the non-verified privilege log prepared by the City shows the disputed e-
mails consist of: (1) e-mails from the League's purported legal assistant to various
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members of the League; (2) an e-mail from a member of the League, David R. McEwen,
to other members of the League; and (3) an e-mail from a member of the League's
executive committee, Bob Hanson, to other members of the League. The League
presented the sworn declaration of its general counsel, Patrick Whitnell, to support its
claim that the e-mails at issue were covered by the attorney-client privilege. Whitnell
stated that the LAC administers the League's Legal Advocacy Program. The LAC is
composed of government attorneys, including Goldsmith. The LAC reviews and
deliberates on pending appellate cases and makes recommendations to the League on
whether the League should participate in a particular case. The League considers all
communications between the LAC and Goldsmith to be covered by the attorney-client
privilege. Whitnell did not state that some of the e-mails were sent by the League's legal
assistant, nor did he state that McEwen and Hanson were members of the League or that
these individuals were sending the communications in their capacity as an attorney for
the League.
During oral argument, the trial court noted that Whitnell did not state in his
declaration that the League's legal assistant sent some of the e-mails and found this
"undermine[d] the foundation upon which the privilege [was] asserted . . . ." The
attorney who prepared the privilege log and argued on behalf of the City, represented to
the court that the League's legal assistant had sent some of the e-mails and that McEwen
and Hanson were League members. After SDOG objected, the trial court declined to take
judicial notice of the truth of counsel's representations. The trial court noted that the
arguments made by the City were not accepted as fact by SDOG, and declined to place
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any evidentiary value on the representations of counsel. Thereafter, the trial court
declined the invitation of both parties to review the e-mails in camera and ruled that the
City had not met its burden of showing the e-mails were privileged.
Employing the approach outlined above (ante, pt. II.C.1), we first examine the
evidence presented to determine if the party claiming the privilege presented facts
establishing a prima facie case supporting each element of the privilege. (Costco, supra,
47 Cal.4th at p. 733.) Our focus is on whether the dominant purpose of the relationship
between the parties to the communication was one of attorney-client. (Id. at pp. 739-
740.) As we shall explain, we conclude that substantial evidence supported the trial
court's finding that the e-mails were not subject to the attorney-client privilege.
We first analyze the e-mails purportedly sent by McEwen and Hanson, as League
members, to other League members. Although the League argued the attorney-client
privilege attached to these e-mails, it failed to explain who was the attorney and who was
the client in these communications. Although the League argued that the
communications were intended to be confidential, there is absolutely no evidence these e-
mails constituted confidential communications between an attorney and a client. (Evid.
Code, § 954.) Accordingly, the trial court properly concluded the attorney-client
privilege did not apply to these e-mails.
Turning to the e-mails purportedly sent by the League's legal assistant to other
legal members, there is no competent evidence showing the person who sent the e-mails
was the legal assistant to Whitnell (the attorney), that the person was acting as Whitnell's
agent when she sent the e-mails to League members (the client), or that the e-mails, while
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claimed to be confidential, were actual communications between an attorney and client.
Because the evidence does not show these e-mails were confidential communications
between an attorney and a client, the trial court properly concluded the attorney-client
privilege did not apply.
In a supplemental declaration seeking a stay of the trial court's order rejecting the
attorney-client privilege and an extension of time to file a writ petition, Whitnell stated
the records ordered to be disclosed consisted of "confidential communications" between
the League, through its LAC, of which Goldsmith is a member and himself though his
legal assistant. Whitnell's claim that the e-mails were confidential communications
between himself as counsel for the League/LAC and the League/LAC as the client, made
after the trial court issued its ruling, does not advance the League's position that the trial
court erred in ordering disclosure of the e-mails.
Our conclusion that substantial evidence supported the trial court's ruling that the
attorney-client privilege did not attach to the e-mails does not end our analysis because
the League contends the trial court erred by refusing to conduct an in camera hearing. As
we noted, while the trial court cannot order disclosure of communications claimed to be
covered by the attorney-client privilege to rule on the privilege, the holder of the
privilege may request an in camera review of alleged privileged communications to aid
the trial court in determining the preliminary fact that a communication was made during
the course of an attorney-client relationship or to attempt to prevent disclosure of the
communication.
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Here, factual questions existed whether the person sending some of the e-mails
was Whitnell's legal assistant acting as an agent for Whitnell. These factual questions
could possibly be answered by an in camera review of the e-mails. Notably, the League
as the purported client and holder of the privilege (Evid. Code § 953, subd. (a)), indicated
it would present the e-mails to the court for in camera review. Although not relevant to
the analysis, SDOG also requested that the court examine the e-mails in camera to
resolve any issue regarding application of the attorney-client privilege.
Where such threshold factual questions exist and the holder of the asserted
attorney-client privilege requests an in camera review, we conclude the trial court erred in
not conducting the in camera review before ordering disclosure of the e-mails.
Accordingly, as to the e-mails purportedly sent by Whitnell's legal assistant, the order is
reversed and the matter remanded for an in camera hearing to determine whether these e-
mails are protected by the attorney-client privilege.
D. Attorney Work Product Doctrine
1. Legal Principles
Documents privileged under the attorney work product doctrine are exempt from
disclosure under the Act. (County of Los Angeles v. Superior Court (2012) 211
Cal. App. 4th 57, 64.) The purpose of the attorney work product doctrine is to preserve the
rights of attorneys in the preparation of their cases and to prevent attorneys from taking
advantage of the industry and creativity of opposing counsel. (Code Civ. Proc.,
§ 2018.020.) The doctrine, however, "is not limited to writings created by a lawyer in
anticipation of a lawsuit. It applies as well to writings prepared by an attorney while
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acting in a nonlitigation capacity." (County of Los Angeles v. Superior Court (2000) 82
Cal. App. 4th 819, 833.)
The attorney work product doctrine absolutely protects from discovery writings
that contain an "attorney's impressions, conclusions, opinions, or legal research or
theories." (Code Civ. Proc., § 2018.030, subd. (a).) General work product (Code Civ.
Proc., § 2018.030, subd. (b)), is entitled to conditional or qualified protection. (Rumac,
Inc. v. Bottomley (1983) 143 Cal. App. 3d 810, 815.) Whether specific material is
protected work product must be resolved on a case-by-case basis. (Dowden v. Superior
Court (1999) 73 Cal. App. 4th 126, 135.) "In camera inspection is the proper procedure to
evaluate the applicability of the attorney work product doctrine to specific documents,
and categorize whether each document should be given qualified or absolute protection."
(Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal. App. 4th 110, 121
(Wellpoint).)
The person claiming protection under the attorney work product doctrine bears the
burden of proving the preliminary facts to show the doctrine applies. (Mize v. Atchison,
T. & S. F. Ry. Co. (1975) 46 Cal. App. 3d 436, 447.) We review the trial court's
conclusion that a document is protected by the attorney work product doctrine to
determine whether it is supported by substantial evidence. (See Collins v. State (2004)
121 Cal. App. 4th 1112, 1128; Wellpoint, supra, 59 Cal.App.4th at p. 114.)
2. Analysis
The privilege log prepared by the City indicated that the e-mails "discuss and/or
attach legal briefs, take votes on proposed action, and discuss pending cases, legal issues
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and questions." Whitnell's declaration similarly stated that "LAC members share and
discuss legal impressions, conclusions, opinions, research and theories related to specific
court decisions and cases on appeal that generally concern California cities." The
evidence does not show that the e-mails contain the "impressions, conclusions, opinions,
or legal research or theories" of Whitnell acting as the attorney for the League or LAC.
(Code Civ. Proc., § 2018.030, subd. (a).) Nor does the evidence show the e-mails
attached legal briefs or other materials prepared by Whitnell acting as the attorney for the
League or LAC. Based on this evidence, the trial court properly concluded the e-mails
were not protected under the attorney work product doctrine.
In his supplemental declaration, filed after the court issued its ruling, Whitnell
stated the e-mails contained "his" work product. Whitnell's belated claim is dismaying.
Nonetheless, because we are remanding this matter for an in camera review as to whether
some of the e-mails are exempt based on application of the attorney-client privilege, in
the interests of justice, the trial court should examine all of the e-mails to determine
whether the e-mails or portions of the e-mails are protected by the attorney work product
doctrine.
F. Summary
Goldsmith is an elected official and the chief legal adviser for the City and its
departments and offices. The City Charter requires that he devote his full time to the
duties of his office. The League is a nongovernmental association of California cities and
their public officials working collectively to enhance the quality of life for all
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Californians. The LAC makes recommendations to the League on whether the
organization should participate in certain cases or provide funding for a case.
As the City Attorney for San Diego, Goldsmith is a permanent member of the
LAC; however, there is no evidence showing Goldsmith's membership in the LAC is a
required function of his job as the City Attorney. "The Act's core purpose is to prevent
secrecy in government and contribute significantly to the public understanding of
government activities." (San Diego County Employees Retirement Assn. v. Superior
Court (2011) 196 Cal. App. 4th 1228, 1244.) To the extent Goldsmith participates in the
LAC to benefit the City and its residents, the public has a right to know the extent of his
participation and his position on matters presented to him by the League. Thus, to the
extent the e-mails are not exempt from disclosure by the attorney-client privilege or
attorney work product doctrine, they should be produced.
While not an issue in this writ proceeding, the League asserted below that the e-
mails are subject to associational privacy rights. We express no opinion on this issue
other than to note the trial court may properly direct that any e-mails ordered to be
disclosed be redacted to protect legitimate privacy interests.
DISPOSITION
Let a writ of mandate issue directing the superior court to do all of the following:
(1) vacate its order requiring disclosure of the e-mails;
(2) as requested by the League, review the e-mails purportedly sent
by Whitnell's legal assistant in camera to evaluate whether they are
exempt from disclosure by the attorney-client privilege; and
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(3) as requested by the League, review all e-mails in camera to
evaluate whether they are exempt from disclosure by the attorney
work product doctrine.
The parties are to bear their own costs of appeal. This court's order staying the
proceedings in the superior court is vacated.
MCINTYRE, J.
WE CONCUR:
MCDONALD, Acting P. J.
AARON, J.
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