Sullivan v. Superior Court

• Decision Date: 30 November 1972
• Citation: 105 Cal.Rptr. 241,29 Cal.App.3d 64
• Court: California Court of Appeals
• Parties: William A. SULLIVAN, Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF SAN MATEO, Respondent; Mary SPINGOLA et al., Real Parties in Interest. Civ. 31609.

Page 241

105 Cal.Rptr. 241

29 Cal.App.3d 64

William A. SULLIVAN, Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF SAN MATEO, Respondent Mary SPINGOLA et al., Real Parties in Interest.

Civ. 31609.

Court of Appeal, First District, Division 4, California.

Nov. 30, 1972.

Rehearing Denied Dec. 27, 1972.

Hearing Denied Jan. 24, 1973.

Ralph A. Rizzo, San Mateo, for petitioner.

Frank D. Fitzgerald, by Richard A. Wylie, San Francisco, for real parties in interest.

San Mateo County Trial Lawyers Association, by Gordon L. Rockhill, Redwood City, amicus curiae in support of petitioner.

BRAY, Associate Justice. ^*

Petitioner petitions for writ of prohibition or other writ to prohibit enforcement of discovery orders of the Superior Court of San Mateo County and an order for payment of attorney's fees.

Questions Presented

1. Evidence Code section 771, regarding a witness' use of a writing to refresh his memory, does not under the circumstances control over the code provisions protecting the confidential relationship between attorney and client.

2. Authority of the court to impose attorney's fees on motion for reconsideration.

Record

Petitioner is the attorney for real parties in interest Mary Spingola and Nick Spingola ¹ and is their attorney in an action in the San Mateo Superior Court, entitled 'Mary Spingola and Nick Spingola, plaintiffs, v. Irene Delores Parker, Dessia Parker, et al., defendants,' for damages for injuries suffered by Mary Spingola in an automobile accident.

Facts

There is apparently no conflict as to the facts alleged in the petition. Petitioner alleges that he 'had interviewed his client, MARY SPINGOLA, concerning the events surrounding an automobile accident occurring on or about August 30, 1971, said accident being the basis of the aforesaid action for damages. The aforesaid interview was conducted in the course of an attorney-client conference, during which petitioner asked questions and plaintiff, MARY SPINGOLA, gave her answers. This interview was taperecorded, with the knowledge of client, and it was expressly represented to client that whatever was stated at this interview was a privileged communication between attorney and client, which petitioner could not reveal to anyone without client's permission.'

Petitioner also alleges: 'Without specifically disclosing the contents of the particular memorandum of MARY SPINGOLA, petitioner advises the Court that it is petitioner's policy, not only to take a detailed statement concerning the facts of the case, but to discuss with the client applicable law and to give initial legal opinions of client's position, based on the facts as related by the client. Petitioner's policy also encompasses the taking of a personal history and background of the client and his family, and to touch upon matters which are only of interest to the lawyer for law office administration. All the information is electronically recorded and later transcribed by office personnel.'

During the taking of the deposition of Mary Spingola, defense counsel asked her if she had used anything to refresh her memory. Her counsel as well as she stated that to refresh her recollection she used a transcription made by petitioner's secretary of the electronically recorded conference between her and the attorney. It is erroneously referred to in the orders and in the petition as 'the memorandum of Mary Spingola.' (It is not a memorandum (see Webster's Third New International Dictionary (1967) pp. 1408--1409).)

The defendants then demanded the production of the 'memorandum.' Petitioner refused to produce it on the ground that it was protected by the attorney-client privilege. At the hearing of a motion by the Parkers to require its production, the court ordered its production. Instead of producing it, petitioner filed a motion asking the court to reconsider the previous order. At that hearing the court reaffirmed its order for production of the 'memorandum,' and in addition ordered the plaintiffs and their attorneys to pay to the defendants' attorney $150 attorney's fees.

Petitioner then filed this petition to prohibit enforcement of these orders, contending that requiring the production of the 'memorandum' violated the attorneyclient privilege and that Mary Spingola's refreshing her memory from the 'memorandum' was not a waiver of the privilege. ²

1. The conflicting statutes

Section 954 of the Evidence Code provides in pertinent part: 'Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by: (a) The holder of the privilege; (b) A person who is authorized to claim the privilege . . .; or (c) The person who was the lawyer at the time of the confidential communication, . . .'

Section 912 provides that the lawyerclient and the other privileges may be waived 'if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to such disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating his consent to the disclosure, . . .'

Section 955 provides in effect that the lawyer who received the communication shall claim the privilege whenever he is present when the communication is sought to be disclosed.

In reviewing her statements made to her attorney in the strictest confidence the client in no way is consenting to a disclosure of those statements, nor is she manifesting 'by any statement or other conduct' consent to disclosure.

Section 952 of the Evidence Code provides: 'As used in this article, 'confidential communication between client and lawyer' means information transmitted between a client and his lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.'

Code of Civil Procedure section 2016, subdivision (b), expressly exempts privileged matter from discovery. '(T)he deponent may be examined regarding any matter, Not privileged, which is relevant to the subject matter involved in the pending action, . . .' (Emphasis added.)

To successfully invoke the lawyerclient privilege, three requirements must be met. There must be a (1) communication, (2) intended to be confidential, and (3) made in the course of the lawyer-client relationship. (See, E.g., City & County of S.F. v. Superior Court (1951) 37 Cal.2d 227, 234--235, 231 P.2d 26.) 'The privilege is given on grounds of public policy in the belief that the benefits derived therefrom justify the risk that unjust decisions may sometimes result from the suppression of relevant evidence. Adequate legal representation in the ascertainment and enforcement of rights or the prosecution or defense of litigation compels a full disclosure of the facts by the client to his attorney. 'Unless he makes known to the lawyer all the facts, the advice which follows will be useless, if not misleading; the lawsuit will be conducted along improper lines, the trial will be full of surprises, much useless litigation may result. Thirdly, unless the client knows that his lawyer cannot be compelled to reveal what is told him, the client will suppress what he thinks to be unfavorable facts.' (Citation.)' (City & County of S.F. v. Superior Court, Supra, at p. 235, 231 P.2d at p. 30.)

There can be no doubt that the memorandum in question is privileged. Real parties (Parker) do not argue otherwise. "Where a person consults an attorney with a view to employing him professionally, any information acquired by the attorney in the course of interviews or negotiations looking toward such employment is privileged and cannot be disclosed, even though no actual employment of the attorney as such follows, . . .' (Citations.)' (Estate of Dupont (1943) 60 Cal.App.2d 276, 288, 140 P.2d 866, 872; see also Maier v. Noonan (1959) 174 Cal.App.2d 260, 266, 344 P.2d 373.) Real parties in interest Irene Parker and Dessea Parker contend that the provisions of section 771 control in a situation of this kind and require disclosure because they claim Mary Spingola waived the privilege.

Evidence Code section 771 provides in pertinent part: '(a) . . . if a witness, either while testifying or prior thereto, uses a writing to refresh his memory with respect to any matter about which he testifies, such writing must be produced at the hearing at the request of an adverse party and, unless the writing is so produced, the testimony of the witness concerning such matter shall be stricken. (b) If the writing is produced at the hearing, the adverse party may, if he chooses, inspect the writing, cross-examine the witness concerning it, and introduce in evidence such portion of it as may be pertinent to the testimony of the witness.'

In People v. Aikin (1971) 19 Cal.App.3d 685, 97 Cal.Rptr. 251, the court found a waiver of both the attorney-client and the psychotherapist-patient privileges where a litigant placed his emotional condition in issue. There, the psychotherapist called to support the defense of the defendant's inability to premeditate conceded that he had refreshed his recollection from a report which he had made for defense counsel. The reviewing court upheld the ruling of the trial court that Because the defendant presented the defense of his mental condition, section 771 (right to inspect a writing used by a witness to refresh his memory)...