Jefferson v. Warren, et al

Analysis

Notably, “[a] presumption exists against deposing opposing counsel that can be rebutted only by meeting a high standard of extremely good cause . . . .” (Riverside Sheriffs' Assn. v. County of Riverside (2007) 152 Cal.App.4th 414, 424 [internal citations omitted].)

In considering whether to allow the examination of opposing counsel, the court considers the following three-prong test: “First, does the proponent have other practicable means to obtain the information? Second, is the information crucial to the preparation of the case? Third, is the information subject to a privilege?” (Carehouse Convalescent Hospital v. Superior Court (2006) 143 Cal.App.4th 1558, 1563 [internal citation omitted].)

As to the first prong, Defendant provides the more convincing argument that there are other practical means to obtain the sought information. Plaintiff’s counsel seeks to depose the defense attorneys and paralegals on their time spent on the case. Defendant argues that Plaintiff already has a copy of opposing counsel’s billing records and has the motions and their supporting documents filed in this case on which the lodestar amount is based. (Corzano Decl., ¶¶3-4, Exhs. B-C.) Defendant asserts that comparing the entries to the work is one practical way to determine whether the representations made in the declaration are correct and if the lodestar amount is reasonable.

Defendant also notes that Plaintiff’s counsel admitted, during his telephonic conversation with Defendant’s counsel, that “he had not reviewed the billing records that [defense counsel] had sent him and the documents that have been filed in the case in detail; and, if he had to do so, he would rather proceed with filing a brief in opposition to the County’s request for attorney’s fees.” (Corzano Decl., ¶14 [emphasis in original].) Also, during the meet-and-confer process, Defendant’s counsel states that Plaintiff’s counsel was unable to point to a single false statement in the lodestar declaration or billing records. (Ibid.)

In addition to such comparison of the billing entries to the documents filed, Defendant contends that Plaintiff’s counsel could have met and conferred with opposing counsel to obtain clarification on statements made in the declaration or the individual billing entries that he had concerns with.

As to the second prong, Defendant again provides the more convincing argument that the information is not relevant to the preparation of the case. Defendant argues that deposing opposing counsel about the representations made in their declaration and billing entries is not crucial in assessing the County’s attorneys’ fees and costs. Notably, Plaintiff’s counsel is in possession of a detailed declaration in support of the County’s attorneys’ fees and costs (Corzano Decl., ¶¶3-4, Exh. B.) By contrast, Plaintiff’s argument that the claimed $15,770.16 can only be assessed by live testimony is not persuasive.

As noted in the opposition, Plaintiff is already raising specific challenges to Defendant’s supporting evidence. The Court then can assess the reasonableness based on such competing points. (Serrano v. Priest (1977) 20 Cal.3d 25, 49 [“The ‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.’ [Citations.]”].)

As to the third prong, Plaintiff provides the more convincing argument that the information surrounding the attorneys’ fees and costs is not subject to the attorney-client privilege. Plaintiff argues that Defendant’s counsel waived the privilege when he submitted the declaration and billing records for $15,770.16, at the behest of the client, respectively acting inconsistent with the intent to maintain privilege as to the aforementioned information. Plaintiff mainly relies on California-American Water Co. case for support, which states: Waiver means ‘the intentional relinquishment or abandonment of a known right.’ And whether there has been waiver is a question of fact.

Waiver ‘always rests upon intent.’ The intention may be express, based on the waiving party’s words, or implied, based on conduct that is ‘so inconsistent with an intent to enforce the right as to induce a reasonable belief that such right has been relinquished.’ (California-American Water Co. v. Marina Coast Water Dist. (2022) 86 Cal.App.5th 1272, 1292 [internal citations omitted].)

In sum the prongs lean more in favor of the Defendant, as Plaintiff has not show “extremely good cause” for the deposition of Defendant’s attorneys and paralegals. (Carehouse Convalescent Hospital, supra, 143 Cal.App.4th 1558, 1562.)

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19. Bank of America, N.A., v. Serrata, Case No. CIVDS1828385 Motion to Set Aside Dismissal & Entry of Judgment 6/1/26, 8:30 a.m., S-17

The Court would GRANT this unopposed motion.

This is a limited civil matter. The submitted declaration supports that the parties entered into a settlement agreement. Plaintiff would dismiss pursuant to Code of Civil Procedure section 664.6, with the Court retaining jurisdiction to enforce the agreement, and certain payments would be make until the debt was paid in full. In the case of default, the parties agreed to judgment in favor of Plaintiff. (Zarco Decl., ¶¶3-4 & Exh. 1.) Movant includes the payment history that shows the cessation of payments. (Zarco Decl., ¶6 & Exh. 2.)

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