Miller v. Superior Court

[392]

Opinion

WHITE, P. J.

This petition questions a trial court ruling permitting discovery of matters alleged to be protected by the attorney-client privilege. Petitioner is the plaintiff in a malpractice lawsuit against one of her former attorneys. She has been required by the trial court to disclose the content of communications between herself and attorneys consulted after the alleged 1971 malpractice. This discovery is said to be justified by waiver of the privilege when petitioner filed the lawsuit and asserted grounds for avoidance of the statute of limitations defense. We reaffirm our holding in

Lohman

v.

Superior Court

(1978) 81 Cal.App.3d 90 [146 Cal.Rptr. 171], that the attorney-client privilege is not waived by plaintiff in this situation placing in issue the content of a confidential communication. We therefore issue writ of prohibition to prevent the trial court from enforcing its discovery order.

Petitioner’s lawsuit alleges that her former attorney, Ross Hamlin, negligently represented her in her dissolution action in 1971, resulting in the undervaluation of community property stock retained by her ex-husband. In her complaint, petitioner alleged that she did not become aware of her actual damages or the real value of the stock until 1977. Real parties raised the statute of limitations as a defense and in discovery asked petitioner about communications with other attorneys after the alleged malpractice by Hamlin. Petitioner named 7 attorneys she had consulted since 1971, but objected that her communications with the named attorneys were confidential, identifying some 44 letters and memoranda covered by the attorney-client privilege.

Real parties moved to compel petitioner to answer questions concerning her communication with these attorneys regarding the subject matter of her lawsuit against real parties. The trial court granted the motion to compel, and this petition followed.

With certain exceptions, the client in an attorney-client relationship, “has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential cpmmunication between client and lawyer. ...” (Evid. Code, § 954.) The only statutory exception even arguably applicable here is that contained in Evidence Code, section 958, which provides: “There is no privilege under this article as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.” Clearly, in an attorney breach case this exception applies only where the alleged