Lohman v. Superior Court

• Decision Date: 22 May 1978
• Citation: Lohman v. Superior Court, 146 Cal.Rptr. 171, 81 Cal.App.3d 90 (Cal. App. 1978)
• Parties: Jean LOHMAN, Petitioner, v. SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF ALAMEDA, Respondent; William O. WEISSICH et al., Real Parties in Interest. Civ. 42269.
• Court: California Court of Appeals

Page 171

146 Cal.Rptr. 171

81 Cal.App.3d 90

Jean LOHMAN, Petitioner, v. SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF ALAMEDA, Respondent William O. WEISSICH et al., Real Parties in Interest.

Civ. 42269.

Court of Appeal, First District, Division 3, California.

May 22, 1978.

Rehearing Denied June 21, 1978.

Hearing Denied July 20, 1978.

McCready & Doyle, James E. McCready, John Doyle, San Francisco, for petitioner.

Duane Grummer, Ericksen, Lynch, Mackenroth, Arbuthnot & Brennan, Inc., San Francisco, for real party in interest, William O. Weissich.

FEINBERG, Associate Justice.

This is a petition for writ of mandamus/prohibition to direct the Alameda County Superior Court to vacate an order requiring petitioner's former attorney, John D. Burroughs, to answer specific questions which, on the ground of attorney-client privilege, he declined to answer at a deposition. Petitioner also requests that answers given by Burroughs at the deposition be suppressed as violative of the attorney-client privilege or work-product rule.

During the period February 6, 1970 through March 7, 1972, petitioner was placed under temporary conservatorship. The temporary conservator was Edward Beverly Lohman; William O. Weissich was the attorney for the temporary conservator and is the real party in interest here.

In 1973, petitioner filed a complaint in respondent court, alleging causes of action for breach of trust, personal injury, and fraud against Lohman. Subsequently, petitioner filed an amended complaint, adding Weissich as a defendant in the action on the theory that Weissich, as attorney and agent of the temporary conservator, was directly responsible for acts and omissions committed during the administration.

Jurisdiction

Initially, Weissich opposes the granting of the writ on procedural grounds.

When Jean Lohman first petitioned this court she did not provide a sufficient record and, consequently, the petition was summarily denied on September 12, 1977. The next day an identical petition accompanied by a complete record was received by the court. On October 24, 1977, this court, acting on the September 13, 1977 petition, issued a peremptory writ of mandate to the respondent court, directing it to vacate its order requiring Burroughs to answer. Petitioner's further request that the answers given by Burroughs be stricken was denied. Thereafter, real party in interest (Weissich) petitioned the Supreme Court for a hearing. The petition was granted but the Supreme Court transferred the cause to this court for hearing.

Respondent argues that under California Rules of Court 24(a) and 27(a), the Court of Appeal has no authority to grant a rehearing in a writ proceeding. While this is a proper reading of the rules, it has no bearing on this case.

Since denial of the initial petition could be interpreted as being other than a decision on the merits, the doctrine of res judicata is inapplicable. (McDonough v. Garrison (1945) 68 Cal.App.2d 318, 327, 156 P.2d 983; see also 5 Witkin, Cal.Procedure (2d ed. 1971) Extraordinary Writs, § 146, p. 3917.) Hence, while we may not rehear the initial petition, i. e., the petition of September 12, 1977, after a final decision was rendered, we may entertain subsequent identical petitions until there is a resolution on the merits.

Attorney-Client Privilege

At the outset, it is not disputed that the questions put to Burroughs, which Burroughs refused to answer, invaded the attorney-client privilege. Both parties agree that the sole issue is whether the privilege had been waived. In considering whether the attorney-client privilege has been waived, we start with the proposition that, as Justice Shinn, concurring, wrote in People v. Kor (1954) 129 Cal.App.2d 436, 447, 277 P.2d 94, 100. "The privilege of confidential communication between client and attorney should be regarded as sacred. It is not to be whittled away by means of specious argument that it has been waived. Least of all should the courts seize upon slight and equivocal circumstances as a technical reason for destroying the privilege." ¹ (Quoted with approval in Sullivan v. Superior Court (1972) 29 Cal.App.3d 64, 71, 105 Cal.Rptr. 241; People v. Flores (1977) 71 Cal.App.3d 559, 565, 139 Cal.Rptr. 546.)

Weissich asserts that the privilege had been waived for either or all of the following reasons: ²

I. Petitioner waived her attorney-client privilege by having issued a subpoena duces tecum to Burroughs and all her other attorneys prior to Burroughs.

Subsequent to the initiation of the instant action, petitioner through her counsel caused a subpoena duces tecum to be issued to Burroughs, a former attorney of hers, and three other attorneys who preceded him in the representation of petitioner in this matter. The subpoena commanded the four attorneys to produce their records regarding their respective representation of petitioner at a deposition though the subpoena indicated on its face that the four attorneys did not have to personally appear. In fact, no records were produced for the reason that either they had been destroyed as each attorney was discharged and a new attorney retained, or the discharged attorney forwarded his case records to the succeeding attorney.

Weissich contends that by issuing the subpoena, petitioner by her statement or conduct has manifested a consent to disclosure. Since the records sought related to the dispute at hand, the argument goes, such disclosure would have been of a significant part of the communications between petitioner and Burroughs, and between petitioner and the other named attorneys. Because Weissich had a right to be present at the deposition and to any information introduced at the deposition, there would have been a disclosure in the presence of a third party, namely, himself. Therefore, pursuant to Evidence Code section 912, subdivision (a), ³ there was a waiver of the privilege between petitioner and all the named attorneys, including Burroughs.

The argument is plausible; however, we reject it for several reasons:

A. Evidence Code section 912, subdivision (a), specifies that waiver occurs when the holder of the privilege has voluntarily disclosed a significant portion of the privileged communications or has consented to such disclosure made by anyone. Thus waiver occurs only when the holder of the privilege has, in fact, voluntarily disclosed or consented to a disclosure made, in fact, by someone else. Put another way, the intent to disclose does not operate as a waiver, waiver comes into play after a disclosure has been made. In the case at bar, concededly there was no disclosure made of anything at the deposition since no attorney had any document to disclose.

B. Assuming for the moment that there is some merit to the proposition that issuance of the subpoena in and of itself triggered the issue of waiver, before waiver occurs there must be a disclosure of a "significant part" of the privileged communication. (Evid.Code, § 912, subd. (a).) Weissich argues that because the subpoena called for records relating to the temporary conservatorship, "clearly" the records related to a significant part of the privileged communications. We suggest that it is not clear at all; on the contrary, it is sheer speculation as to what the records might have contained. They might have been neither a "significant part" nor even privileged at all as not being a confidential communication between client and attorney.

C. Finally, accepting Weissich's analysis up to a point, it assumes that because a witness or his records are subpoenaed to a deposition, the witness will testify or the records will be introduced at the deposition, at which point, the testimony or records will be disclosed to a third party and waiver occur. Again, the assumption that the subpoenaed records will be offered at the deposition is a gratuitous one. The party causing the subpoena to be issued may change his mind at the deposition and not offer the documents. In such event, there will not have been any disclosure to a third party. If Weissich is correct, then, if a client subpoenas a former attorney as a witness at trial and then decides not to call him, the client will have waived the privilege by simply having subpoenaed the attorney. This is surely not the law.

II. Petitioner waived the privilege vis-a-vis Burroughs by herself testifying as to privileged communications with certain of her prior attorneys regarding the subject matter of the litigation and by permitting one of her attorneys prior to Burroughs to be so examined.

In essence, the argument for waiver is twofold:

A. The first argument is that the privilege protects the content of a communication between attorney and client and once a significant part of that content has been voluntarily disclosed, then that content can no longer be protected against disclosure. The proposition is misleading; it mistakes the means for the end.

The end is that, as a matter of public policy, the Legislature declared that certain relationships are of such nature that they must be sedulously fostered. The means for achieving that end was the creation of a privilege against disclosure of the contents of such confidential communications as passed between the parties to the relationship during its course even as against the manifest imperative of fair adjudication by disclosure of all relevant evidence. (See City & County of S. F. v. Superior Court (1951), 37 Cal.2d 227, 235, 231 P.2d 26; People v. Canfield (1974), 12 Cal.3d 699, 705, 117 Cal.Rptr. 81, 527 P.2d 633; Glade v. Superior Court (1978), 76 Cal.App.3d 738, 743, 143 Cal.Rptr. 119; McCormick on Evidence (2d ed. 1975) § 72, p. 152.)

Therefore, it is not the content of the communication but the relationship that must be preserved and enhanced as a societal value. Thus, if the client discloses certain facts to a third person and subsequently advises his attorney of those same facts in the form of a...