Curtis v. Superior Court of L. A. Cnty., B292967

• Court: California Court of Appeals
• Writing for the Court: FEUER, J.
• Citation: 276 Cal.Rptr.3d 676,62 Cal.App.5th 453
• Parties: Robert A. CURTIS, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; California Employment Lawyers Association, Real Party in Interest.
• Docket Number: B292967
• Decision Date: 24 March 2021

62 Cal.App.5th 453
276 Cal.Rptr.3d 676

Robert A. CURTIS, Petitioner,
v.
The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

California Employment Lawyers Association, Real Party in Interest.

B292967

Court of Appeal, Second District, Division 7, California.

Filed March 24, 2021

Foley Bezek Behle & Curtis, Thomas G. Foley, Jr., Aaron L. Arndt and J. Paul Gignac, Santa Barbara, for Petitioner.

Alexander Krakow + Glick, Alexander Morrison + Fehr, J. Bernard Alexander, III, and Tracy L. Fehr, Los Angeles; The deRubertis Law Firm and David M. deRubertis, Studio City, for Real Party in Interest.

FEUER, J.

62 Cal.App.5th 458

Robert A. Curtis, an attorney and third-party witness in the underlying action, appeals from an order granting the motion of the California Employment Lawyers Association (CELA) to compel Curtis to provide deposition testimony identifying a nontestifying expert whom Curtis consulted in prior litigation. In the underlying action, CELA alleges an unknown CELA member (Doe 1) sent Curtis, a non-member,

276 Cal.Rptr.3d 680

information received from a members-only email distribution list in violation of a confidentiality agreement. Curtis then disclosed the confidential information from Doe 1 to his client, and the information was filed in opposition to a motion for attorneys’ fees filed in the prior action. Curtis contends the trial court abused its discretion in compelling him to testify because the identity of Doe 1—as a nontestifying expert—is entitled to both absolute and qualified attorney work product protection.

62 Cal.App.5th 459

The identity of Curtis's nontestifying expert is not entitled to absolute work product protection because it is not "a writing" that would reveal Curtis's "impressions, conclusions, opinions, or legal research or theories." ( Code Civ. Proc., § 2018.030, subd. (a).)¹ However, if an attorney can show that disclosure of the identity of a nontestifying expert would result in opposing counsel taking undue advantage of the attorney's industry or efforts or impair the attorney's ability to prepare and investigate a case, the identity may be entitled to protection under the qualified work product privilege. In that case, the identity is only discoverable if the party seeking discovery can establish that "denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice." ( § 2018.030, subd. (b).)

The identity of Doe 1 is entitled to at most qualified attorney work product protection, and the trial court did not abuse its discretion in finding CELA met its burden to demonstrate denial of disclosure would unfairly prejudice CELA in prosecuting the action and only minimally disadvantage Curtis. We agree with CELA that Curtis has appealed from a nonappealable discovery order, but we treat Curtis's appeal as a petition for writ of mandate. We dismiss the appeal and deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Saccio Action and Curtis's Consultation with Doe 1²

Curtis is a named partner at the law firm Foley Bezek Behle & Curtis, LLP (FBBC), which has represented Santa Barbara businessman Antonio Romasanta in a variety of legal matters for more than 30 years. In November 2016 Charles Saccio, an employee at a hotel owned and operated by Romasanta, filed an age discrimination lawsuit against Romasanta in the Santa Barbara County Superior Court (Saccio v. Romasanta et al. (Super. Ct. S.B. County, No. 15CV00672) (the Saccio action)). Although Romasanta retained a different law firm as his trial counsel in the Saccio action, he also retained Curtis to assist with trial preparation, trial strategy, and posttrial motions.

Curtis does not specialize in employment law, so when employment issues arise for his business clients, Curtis routinely consults with nontestifying experts to advise him on employment law, help him investigate and prepare a legal strategy, and provide a plaintiff's perspective. Curtis does not have the experts testify at trial or prepare a written report.

62 Cal.App.5th 460

In the Saccio action, Curtis contacted Doe 1 a few weeks before opening statements and starting using Doe 1 as a nontestifying expert.³ Doe 1 is an attorney

276 Cal.Rptr.3d 681

who specializes in representation of plaintiffs in employment law matters. Over the course of the trial, Curtis consulted Doe 1 on multiple occasions. After the jury rendered a verdict in favor of Saccio, Curtis continued to use Doe 1 to evaluate potential weaknesses in the evidence relied on by Saccio's attorney in connection with Romasanta's motions for judgment notwithstanding the verdict and for a new trial. After Romasanta's posttrial motions were denied, Doe 1 assisted Curtis in developing strategies for opposing Saccio's motion for attorneys’ fees.

B. The Secrest Posting on the CELA Listserv

CELA is a nonprofit corporation "dedicated to advancing and protecting the interest of California workers and assisting the attorneys who represent employees in various matters," and it offers members access to online depositories and email "Listservs" that members use to exchange ideas and strategies. On November 22, 2016, the day the jury returned a verdict in the Saccio action, Saccio's lead trial attorney, David Secrest, posted a message describing his victory on CELA's online Listserv called "CELA Employment Law Discussion." Secrest's posting, which was available to 1,300 CELA members, was entitled "Small Victories: Discrimination/Harassment verdict," and it provided a colorful account of the strategies and factors Secrest believed had contributed to a $400,000 jury verdict for Saccio.

Doe 1, who is alleged to be a member of CELA,⁴ forwarded an email containing Secrest's posting to Curtis. Curtis and the other attorneys at FBBC are not members of CELA.⁵ Curtis in turn forwarded the email containing the Secrest posting to Romasanta, and the email was filed as an exhibit in support of Romasanta's opposition to Saccio's motion for attorneys’ fees. Saccio moved to strike the Secrest posting on the grounds it contained attorney work product and attorney-client privileged matter. CELA filed an amicus curiae brief supporting Saccio's position. The trial court in the Saccio action⁶ denied the motion to strike, ruling Secrest waived any privilege in his trial summary by sharing it widely on CELA's Listserv. On May 5, 2017 the court awarded Saccio attorneys’ fees. Romasanta passed away shortly after the conclusion of the Saccio action.

62 Cal.App.5th 461

C. CELA's Lawsuit and Motion To Compel

On June 9, 2017 CELA filed the underlying action in the Los Angeles County Superior Court. CELA's complaint alleged causes of action for breach of contract and injunctive relief against five Doe defendants who were members of CELA. CELA alleged that its members are required to enter a written joint prosecution and confidentiality agreement to receive access to its confidential materials, including information on its Listserv. CELA alleged further on information and belief, "[O]n or about November 22, 2016, [Doe] 1 forwarded CELA [c]onfidential [m]aterial

276 Cal.Rptr.3d 682

to a third party, a non-CELA member [recipient], in violation of the conditions of the CELA [c]onfidentiality [a]greement. This lawsuit seeks to determine the identity of [Doe] 1 and any other violators of the CELA contractual agreement related to this disclosure, in order to seek monetary and injunctive relief consistent with the CELA [c]onfidentiality [a]greement." The complaint alleged Does 1 through 5 "must by necessity be identified by way of discovery."

On September 25, 2017 CELA subpoenaed Kathryn Romasanta-Eckert, the executor of Romasanta's estate, to obtain unredacted copies of communications relating to Romasanta's receipt of the Secrest posting and information identifying the source of the posting. Romasanta-Eckert moved to quash the subpoena, asserting the requested information "relate[d] directly to communications and advice between Antonio Romasanta and his attorneys" and was protected by the attorney-client privilege. The trial court⁷ denied the motion, holding that although the contents of communications between Romasanta and his attorney were privileged, "other identifying information concerning the communication, such as the name of the attorney, the date of the communication, and ... the lawyer's email address would not be privileged." In compliance with the court's order, Romasanta-Eckert provided the email which had been sent to Romasanta. The email identified Curtis as the attorney who forwarded the Secrest posting, but it did not identify Doe 1.

CELA's counsel deposed Curtis on April 18, 2018 and asked him to identify Doe 1. Curtis timely served objections in advance of the deposition, and at the deposition Curtis's attorney instructed Curtis not to answer questions asking him to disclose the identity of Doe 1, asserting the attorney work product privilege. CELA ultimately...