Nowell v. Superior Court for Los Angeles County
| Decision Date | 20 December 1963 |
| Citation | 36 Cal.Rptr. 21,223 Cal.App.2d 652 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 2 A.L.R.3d 853 Louis NOWELL, David Janison and Stuart Spencer, Petitioners, v. SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondent. Phill SILVER, Real Party in Interest. Civ. 27755. |
Bass & Stern, Charles D. Stern, Sunland, for petitioners.
Harold W. Kennedy, County Counsel, Donald K. Byrne, Deputy County Counsel, for respondent.
Phill Silver, Hollywood, in pro. per., for real party in interest.
Louis Nowell, one of the petitioners herein, and Phill Silver, real party in interest were candidates for the office of councilman in the City of Los Angeles at the election of May 28, 1963. On June 6, 1963, Silver filed an action against Nowell and a number of others, alleging that in the course of the campaign defendants published certain material that assertedly libeled him. Subsequently Silver took the deposition of Nowell. Upon advice of counsel, Nowell refused to answer numerous questions. Silver's motion to compel him to answer pursuant to Code of Civil Procedure, section 2034, was granted as to certain questions and denied as to others.
Nowell and two of the other defendants petitioned this court for a writ of prohibition. The petition sets forth eleven questions to which objection was taken on the ground that they sought to elicit privileged communications between defendants and their counsel. As to these questions petitioner Nowell asserted the attorney-client privilege and refused to answer. The trial court, however, granted the motion of the real party in interest to require answers to them. This petition seeks to restrain the respondent court from requiring him to answer.
In the course of the deposition Nowell testified that he and the other defendants met in conference with the attorney, that they were there seeking legal advice and that the relationship was that of attorney and client. In opposition to the motion to compel answers, petitioners submitted the declaration of their counsel, Charles D. Stern, Esq. It states that on May 21, 1963, he had a consultation with Nowell and the other defendants, at which time they retained him as their attorney to advise them and represent them in any action that might be filed by Silver as a result of a publication which they were planning; that Silver had already filed a number of suits against Nowell and others and his propensity for filing suits against the City and civil servants and other people in the public eye was well known; and defendants were sure that regardless of what was published a lawsuit would result. This declaration concludes that 'the purpose of that meeting was to retain the attorney to represent them and to examine certain articles and documents and give a legal opinion as to whether or not such articles constituted a lible [sic] against Phill Silver.'
Nine of the questions, set out in the footnotes, may be categorized as follows: (1) questions in which Nowell was asked if he solicited legal advice regarding particular conduct or inaction on his part; 1 (2) questions in which he was asked whether he discussed or asked his attorney regarding the legal effect of particular conduct or inaction on his part or the attorney gave advice regarding particular conduct or inaction on Nowell's part; 2 (3) questions in which Nowell was asked if he relied on the advice of his attorney in publishing particular material. 3
Real party in interest concedes that one of the eleven questions was incomplete. As to it no answer was required. The remaining question was 'What was the purpose of having a conference in your attorney's office?' This question was in effect answered by Nowell's testimony as well as by the attorney's declaration. In any event there is no privilege as to the fact that an attorney-client relationship exists (Brunner v. Superior Court, 51 Cal.2d 616, 618, 335 P.2d 484) inasmuch as a showing to this effect is the very foundation of the privilege. (See Maier v. Noonan, 174 Cal.App.2d 260, 344 P.2d 373.)
In order not to needlessly extend this opinion, reference is here made to a very learned discussion of the history and rationale of the attorney-client privilege in Rigolfi v. Superior Court, 215 Cal.App.2d 497, 30 Cal.Rptr. 317.* Reference should also be made to Brown v. Superior Court, 218 Cal.App.2d 430, 32 Cal.Rptr. 527.
Section 1881, subd. 2, Code Civil Procedure, declares in pertinent part: 'An attorney can not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment * * *.' The privilege, of course, cannot be defeated by questioning the client instead of the attorney. (I. E. S. Corporation v. Superior Court, 44 Cal.2d 559, 564, 283 P.2d 700.)
In Brown, supra, it was pointed out (218 A.C.A. 453, 460, 32 Cal.Rptr. 527, 531) that: Section 2016(b), Code Civil Procedure, makes this point clear in the following language:
Real party in interest contends that the information sought is not privileged and notes that the questions do not call for conversations between attorney and client. He insists that they simply call for a yes or no answer. However, he over-simplifies the implications in these questions. He clothes them in raiment of innocence that tends to conceal but nevertheless still reveals their privileged content. From an examination of these questions, it is apparent that each question, in addition to seeking information as to whether Nowell obtained legal advice, also seeks an admission on his part that he asked his attorney questions about particular matters which indicated certain conduct on his part, or that he had certain knowledge which he imparted to his counsel, or that his counsel gave him advice based thereon. Each question assumes some fact that Nowell must impliedly admit whether his answer is in the affirmative or negative.
Since an analysis of all nine questions would not be of interest to the profession generally nor helpful in other discovery proceedings we shall illustrate the difficulty implicit in these questions by briefly analysing only one. The last question under footnote 1 will adequately serve this purpose. It reads: 'Did you consult an attorney about your responsibility to me arising from your failure to reveal...
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