Platt v. Superior Court (Contreras), D010124

• Citation: 214 Cal.App.3d 779,263 Cal.Rptr. 32
• Decision Date: 11 October 1989
• Docket Number: No. D010124,D010124
• Parties: Previously published at 214 Cal.App.3d 779 214 Cal.App.3d 779 Shearn H. PLATT et al., Petitioners, v. SUPERIOR COURT, etc., County of San Diego, Respondent. William R. CONTRERAS et al., Real Parties in Interest.
• Court: California Court of Appeals

Page 32

263 Cal.Rptr. 32

Previously published at 214 Cal.App.3d 779

214 Cal.App.3d 779

Shearn H. PLATT et al., Petitioners, v. SUPERIOR COURT, etc., County of San Diego, Respondent William R. CONTRERAS et al., Real Parties in Interest.

No. D010124.

Court of Appeal, Fourth District, Division 1, California.

Oct. 11, 1989.

Review Granted Jan. 4, 1990.

Lewis, D'Amato, Brisbois & Bisgaard and Janice Gay Gibbons, San Diego, for petitioners.

No appearance for respondent.

Leo S. Papas, APC and Leo S. Papas, Bruce A. Ray, Lindley, Lazar & Scales and Ron A. Stormoen, San Diego, for real parties in interest.

NARES, Associate Justice.

Petitioners (Attorneys) are attorneys who have been sued by former clients (Clients) for legal malpractice. Not surprisingly, Clients wish to examine their own files which were generated by Attorneys when Attorneys represented Clients. Attorneys have objected to producing certain writings reflecting their thoughts, impressions, legal research and theories, invoking Code of Civil Procedure section 2018, subdivision (c), ¹ which provides such writings "shall not be discoverable under any circumstances."

In light of the history surrounding California's work product rule, the express statement of its purpose in section 2018(a), and related provisions, ² we conclude section 2018(c) was never intended to shield attorney work product from the lawyer's own client where the client sues the lawyer for legal malpractice. We acknowledge that "not discoverable under any circumstances" is emphatic. Nevertheless, because a statute's literal language must yield where it leads to a result inconsistent with the statute's purpose, we agree with the superior court that the requested documents are discoverable.

FACTUAL AND PROCEDURAL BACKGROUND

In April 1989 Clients filed their second amended complaint against Attorneys for professional negligence and breach of fiduciary duty. Essentially, Clients allege they employed Attorneys to represent them in an investment and that Attorneys secretly represented an interest adverse to Clients in the same transaction. Attorneys' answer contains a general denial and several affirmative defenses.

Clients served attorneys Shearn H. Platt, Martha Lessman Katz and Rudick, Platt & Victor with a request for production of documents under section 2031. Each request seeks, among other writings:

"Any and all ... writings ... in your possession ... which relate to or concern: [p] 1. Any respect of your representation of any plaintiff ... at any time, including all files (including covers), correspondence, pleadings, inter-office notes and memoranda, telephone messages, contracts for services, engagement letters/fee agreements, research work papers, notes and memoranda, drafts, agreements, billing statements, time sheets, diaries, appointment books, computer printouts, forms, ledger cards, notes of meetings and notes of telephone conferences...."

The responding attorneys withheld 49 writings from the documents requested, including "attorney's notes," "memorand[a]" and "research," asserting the attorney work product "privilege" protected each such writing from discovery.

DISCUSSION

I Introduction

Section 2018 does not define work product, but divides it into two separate categories. "Ordinary" work product is not discoverable "unless the court determines "Any writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories shall not be discoverable under any circumstances."

that denial of discovery will unfairly prejudice the party seeking discovery ... or will result in an injustice." (§ 2018(b).) Section 2018(b) is expressly subject to subsection (c). Section 2018(c) creates special protection--sometimes referred to as "absolute" work product--for writings reflecting attorney thoughts by providing:

Attorneys contend section 2018(c) means what it says: Even where an attorney's thoughts are not simply the means to the end of effective legal representation, but instead are operative facts in a malpractice case, the attorney's former client cannot discover such writings in his own file. Attorneys' contention is not without force.

The literal meaning of section 2018(c) supports Attorneys. Section 2018(c) states the writings are not discoverable "under any circumstances" and an attorney malpractice case is obviously a "circumstance." Moreover, several courts, although faced with facts where someone other than a former client has sought "absolute" work product, have gratuitously stated or implied the work product rule can be asserted by an attorney even against a former client. (See, e.g., Travelers Ins. Companies v. Superior Court (1983) 143 Cal.App.3d 436, 453, 191 Cal.Rptr. 871; Popelka, Allard, McCowan & Jones v. Superior Court (1980) 107 Cal.App.3d 496, 501, 165 Cal.Rptr. 748; BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1251, 1254, 245 Cal.Rptr. 682; Fellows v. Superior Court (1980) 108 Cal.App.3d 55, 68, 166 Cal.Rptr. 274.) Indeed, Rumac, Inc. v. Bottomley (1983) 143 Cal.App.3d 810, 192 Cal.Rptr. 104, a case from this court, on the one hand notes the attorney's former client was not a party to the appeal, but on the other suggests the attorney could "correctly" assert the work product rule against his former client's wishes. (Id. at p. 812, fn. 3, 192 Cal.Rptr. 104.) ³

Following the lead of these cases, a recent opinion held an attorney sued for malpractice could withhold "opinion" work product from his former client as "privileged" under section 2018(c). (Neeb v. Superior Court (1989) 262 Cal.Rptr. 887.) As discussed in more detail below, in our view, Neeb reaches an incorrect conclusion because it fails to consider, much less reconcile, its holding in light of other statutes and rules requiring attorneys to deliver their work product to former clients.

Statutory interpretation requires much more than unhesitatingly applying a statute's literal language. The literal approach urged by Attorneys asks the wrong question. The issue is not what the words mean, but what the Legislature meant by them.

A purely literal interpretation of any part of a statute will not prevail over the purpose of the legislation. (In re Kernan (1966) 242 Cal.App.2d 488, 491, 51 Cal.Rptr. 515.) "Words will not be given their literal meaning when to do so would make the provisions of a statute apply to transactions never contemplated by the legislative body. The intent of a law prevails over the letter and the letter will, if possible, be so read as to conform to the spirit of the act. [Citation omitted.]" (LaBorde v. McKesson & Robbins, Inc. (1968) 264 Cal.App.2d 363, 370, 70 Cal.Rptr. 726.) "[C]ourts resist blind obedience to the putative 'plain meaning' of a statutory phrase where literal interpretation would defeat the Legislature's central objective." (Leslie Salt Co. v. San Francisco Bay Conservation Applying these principles in other contexts, courts have determined such "plain" language as "spouse" does not really mean spouse in Unemployment Insurance Code section 1032 (Altaville Drug Store, Inc. v. Employment Development Department (1988) 44 Cal.3d 231, 242 Cal.Rptr. 732, 746 P.2d 871); "brought" does not really mean brought in Code of Civil Procedure section 1038 (Curtis v. County of Los Angeles (1985) 172 Cal.App.3d 1243, 218 Cal.Rptr. 772); and "all types of vehicular riding" does not really mean all types, but only recreational vehicular riding, under Government Code section 846 (Gerkin v. Santa Clara Valley Water Dist. (1979) 95 Cal.App.3d 1022, 1027, 157 Cal.Rptr. 612; disapproved on other grounds in Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 707, 190 Cal.Rptr. 494, 660 P.2d 1168.) ⁵ If "spouse" does not necessarily mean spouse, and if "all" can mean less than everything, it should not be surprising that "any circumstances" may not include the situation where, as here, a former client, in prosecuting a legal malpractice action, seeks work product created by his former lawyer during the representation.

                etc.  Com. (1984) 153 Cal.App.3d 605, 614, 200 Cal.Rptr. 575.)   The meaning of a statute may not be determined from a single word or sentence;  the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible.  (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.)   The so-called "plain meaning rule" does not prohibit a court from determining whether the literal meaning comports with a statute's purpose or whether such a construction of one provision is consistent with other provisions of the statute.  (Ibid.) 4
                

Moreover, although Neeb v. Superior Court, supra, 262 Cal.Rptr. 887, held an attorney may assert the absolute work product rule against a former client in a malpractice case, other courts considering this issue have suggested to the contrary. Thus, although the court in Lasky, Haas, Cohler & Munter v. Superior Court (1985) 172 Cal.App.3d 264, 278, 218 Cal.Rptr. 205 states "the attorney is the sole holder of the privilege and may effectively assert it even as against a client," the court distinguishes its facts from those here--a legal malpractice case--and remarks, "[t]here are strong ethical public policy considerations for concluding that the client has an absolute right of access to all work product generated by his attorney in representing the client's interests." (Id. at p. 279, 218 Cal.Rptr. 205.) Similarly, in Roberts v. Heim (N.D.Cal.1988) 123 F.R.D. 614, the court held the attorney could not assert the absolute work product rule against a former client suing for malpractice:

"It is difficult, if not impossible, to see how providing a client with his attorney's work product, which has been created by his attorney and for his benefit and not that of the attorney, would in any way As discussed in more detail below, we disagree with Neeb and we question the dicta in...