Deukmejian v. Superior Court

Decision Date10 March 1980
Citation103 Cal.App.3d 253,162 Cal.Rptr. 857
CourtCalifornia Court of Appeals Court of Appeals
PartiesGeorge DEUKMEJIAN, Attorney General of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; KAPLAN, LIVINGSTON, GOODWIN, BERKOWITZ & SELVIN, a partnership, Real Party in Interest. Civ. 55977.
George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Div. of Crim. Law, Marjory Winston Parker, Asst. Atty. Gen., Medi-Cal Fraud Unit, and Alexander W. Kirkpatrick, Deputy Atty. Gen., for petitioner

Irell & Manella, Robert L. Winslow, Gregory R. Smith and David A. Seeley, Los Angeles, for real party in interest.

Smaltz & Neelley, A Professional Law Corp., Gregory A. Wedner and Judith K. Otamura, and Latham & Watkins, Hugh Steven Wilson and Donald L. Cornwell, Los Angeles, for amicus curiae Beverly Hills Bar Ass'n.

Barry Tarlow and Thomas V. Johnston, Los Angeles, for amicus curiae California Attorneys for Criminal Justice.

Herbert M. Rosenthal, San Francisco, Robert M. Sweet, Los Angeles, Truitt A. Richey, San Francisco, and Marie M. Moffat, Oakland, for amicus curiae The State Bar of California.

KLEIN, Presiding Justice.

Petitioner, George Deukmejian, Attorney General of the State of California (AG), seeks a peremptory writ of mandate to compel respondent Superior Court of Los Angeles County (trial court) to vacate its KLGBS is the plaintiff in the action 1 entitled "KAPLAN, LIVINGSTON, GOODWIN, BERKOWITZ & SELVIN, a partnership, Plaintiff v. STATE OF CALIFORNIA; GEORGE "DUKE" DEUKMEJIAN, Attorney General of the State of California; and, THE MUNICIPAL COURT FOR THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, Defendants," case number C 277 290, which seeks injunctive relief enjoining the AG and his agents from executing a search warrant issued by the Los Angeles Municipal Court (Municipal Court), for the search of the law offices, files and records of KLGBS, and from seeking issuance of any other warrant for the said location, pending trial of the matter.

order granting the motion of real party in interest, the law offices of Kaplan, Livingston, Goodwin, Berkowitz & Selvin (KLGBS) for a preliminary injunction.

The trial court granted the preliminary injunction as prayed, and added another provision restraining the AG from conducting any search of the offices, files and records of KLGBS, expressing grave concern about the "overbreadth" of the search warrant, and with the "roving commission" manner in which the warrant was to be enforced.

This court issued an alternative writ ordering the trial court to vacate the preliminary injunction, or to make certain modifications or to show cause why a peremptory writ of mandate ordering compliance should not issue.

KLGBS filed a return to the petition by way of demurrer and answer.

This court accepted three amicus curiae briefs filed in support of KLGBS.


In connection with an ongoing multi-million dollar Medi-Cal fraud investigation of Edward Rubin, M.D., doing business as Spectro Health Services, Inc., and related entities, agents of the AG applied for a search warrant for a number of locations seeking documentary evidence of criminal activity. On March 19, 1979, a warrant was issued by the Municipal Court commanding the search of the law offices of KLGBS, and other locations.

The search warrant permitted the search of "(t)he multi-story building . . . including all rooms, lofts, attics, basements, desks, closets, filing cabinets, safes, vaults, and all parts therein . . . storage areas, garages, and outbuildings . . . for (inter alia) (r)ecords . . . (of) Spectro Health Services, Dr. Edward Rubin and . . . entities . . . including . . . all ledgers, log books, invoices, work papers, bank statements, cashed checks, payroll records, purchases journals, check registers, monthly census summaries . . . all licenses, contracts, employment contracts, hospital sales or escrow agreements, memorandums, letters, indemnification agreements, notes or other documents indicating transactions and/or contracts between Spectro, its hospitals and related entities . . . and corporate officers, attorneys, Certified Public Accountants (CPA's), employees and other individuals . . .."

The warrant allowed the search for records covering a five-year period. It referred to four attachments containing nine pages with over 70 related entities, persons and documents.

The warrant was served upon KLGBS at approximately 9 a. m. on March 21, 1979. During the three hour plus course of execution, three agents and a deputy AG were on the premises. Attorneys and employees of the law offices were retained in a reception area during part of the search.

At about 3 p. m., the same afternoon KGLBS applied for and obtained from the trial court a temporary restraining order restraining the AG and its agents from executing the search warrant at KLGBS, and from seeking the issuance of any other warrant for the search of the law offices of KLGBS, and from conducting any search of their law offices. The temporary restraining The AG's agents complied with the trial court's order, ceased their search, and left the premises of KLGBS without taking any property. They did not seek any other warrant to search the premises.

order was followed by the granting of the preliminary injunction to the same effect some three weeks later.

Following the granting of the preliminary injunction, the AG filed a notice of appeal, and sought the peremptory writ of mandate.


The AG prays for the alternative writ to issue claiming that the trial court exceeded its jurisdiction in granting the preliminary injunction in that equity cannot restrain a warrant valid on its face, and that KLGBS must pursue its remedies at law. He attacks the preliminary injunction as having been issued on the impermissible assumption that attorneys as a class are exempt from searches for evidence of criminal activity.

KLGBS counters, maintaining the trial court acted within its jurisdiction and that they have no adequate remedy at law, that the writ should be summarily denied because the AG has failed to demonstrate the inadequacy of its remedy by appeal or otherwise, and that the warrant was unconstitutionally overbroad.

Amici curiae, The State Bar of California, Beverly Hills Bar Association, and California Attorneys for Criminal Justice, urge that the search warrant as proposed by the AG is inherently unreasonable in that its execution would violate the attorney-client privilege, the work-product privilege, the constitutional right to privacy, and the rights of clients to effective representation by counsel. They further advocate that the preliminary injunction must be upheld because the only reasonable means of obtaining documents sought in this case is by subpoena duces tecum.

For the reasons hereinafter discussed, we determine that a peremptory writ of mandate shall issue, directing that the trial court vacate the order granting the preliminary injunction in Superior Court of Los Angeles County case number C 277 290.


At the time this court granted the alternative writ of mandate, namely May 8, 1979, the fact situation herein signaled many delicate and complex legal problems of considerable significance, attested to by the number and volume of briefs filed for our edification.

There was presented the basic question as to whether the search warrant was "too broad" in its scope and manner of execution, and if so, what remedy, if any, was available to nonsuspect KLGBS. Next, a judge sitting in the Writs and Receivers Department of the Los Angeles County Superior Court, laudably concerned about maintaining the integrity of attorneys' files and fashioning a remedy, granted a temporary restraining order and a preliminary injunction in very broad terms, in effect preventing the AG from conducting any search at the location of the law offices of KLGBS.

Faced with this impasse, this court issued an alternative writ and suggested a compromise solution which called for cooperation among the trial court, the AG and KLGBS. We then recognized the many seemingly insoluble issues to be resolved in the event our order was rejected, issues more appropriately within the domain of the legislature. Some seven months have now elapsed since the granting of the alternative writ.

The fact that the search warrant in question is now void since it was not executed within 10 days after the date of issuance (Pen.Code, § 1534) does not render this matter moot because the existing injunction has caused a stalemate.

Fortunately, the stalemated situation came before the California legislature in April 1979, when as an outgrowth of the fact situation herein, attorneys sought legislation to protect the confidentiality of their files. By virtue of the adoption of resulting legislation, much of our burden as an appellate court has been relieved.

In recognition of the valid and sometimes crucial role search warrants serve in the continuing struggle against sophisticated white-collar crime and the basic need to protect privileged material in the possession of attorneys, among others, and by compromising and balancing these strong competing societal interests, the legislature filled the existing void with procedural protections.

The legislature's vanguard efforts are reflected in significant amendments to the statutory scheme governing search warrants, found in Penal Code sections 1523 to 1542, and to the Evidence Code section dealing with privileges.

Effective January 1, 1980, and as amended, Penal Code section 1524 now provides for specified procedures to be followed in the issuance and execution of warrants relating to the offices and files of lawyers and others who claim statutory privileges. Subdivisions (c) and (d) thereof currently read:

"(c) Notwithstanding subdivision (a) or (b), no search warrant...

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    ...(attorney not suspected of crime; evidence seized from attorney's office suppressed); Deukmejian v. Superior Court for the County of Los Angeles, 103 Cal.App.3d 253, 162 Cal.Rptr. 857 (Ct.App.1980) (rejecting per se rule against law office search in light of California statute, which applie......
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