Rosenberg v. Super. Ct. CA1/2

Filed 3/11/15 Rosenberg v. Super. Ct. CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

SANDRA ROSENBERG, Petitioner, v. THE SUPERIOR COURT OF SAN A143254 MATEO COUNTY, (San Mateo County Respondent; Super. Ct. No. CIV 515707) MERIDIAN BAY HOMEOWNERS ASSOCIATION, Real Party in Interest.

BY THE COURT:1 Petitioner is the plaintiff in a lawsuit against certain board members of her condominium complex and the Meridian Bay Homeowners Association (Meridian Bay or the HOA), the real party in interest. In October 2012, she served discovery requests on Meridian Bay seeking, among other things, communications between the HOA and its property manager. Meridian Bay has resisted producing dozens of such communications, asserting they are attorney work product or attorney-client privileged. In June 2013, in response to plaintiff’s motion to compel, the trial court ordered Meridian Bay to produce 81 documents for a special master’s evaluation of the HOA’s privilege allegations. Upon reviewing the documents in camera, the special master

1 Before Kline, P.J., Richman, J., and Stewart, J.

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recommended that some of them be produced in full, some in part, and that some be withheld as privileged. The superior court largely adopted these recommendations, observing correctly in its order that defendants’ fourth amended privilege log did not contain sufficient facts to substantiate their privilege claims. In particular, the superior court noted, an “entire email chain is not privileged solely because one email within the chain warrants the privilege.” The HOA filed an untimely petition seeking writ relief from this court. On May 5, 2014, we issued a peremptory writ of mandate directing the superior court to vacate its order because the Supreme Court has interpreted Evidence Code section 915 to prohibit the wholesale review, even in camera, of information claimed to be privileged in order to review the claim of privilege. (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal. 4th 725 (Costco); Evid. Code, § 915.) Being careful to note that “we express no opinion on the merits of petitioners’ assertions that the documents are privileged or otherwise not discoverable,” we directed the superior court to “conduct a new hearing in compliance with Costco . . . and its progeny.” After calling for briefing and scheduling several hearings, but never holding one, the superior court simply reversed its first order, and denied petitioner’s motion to compel in its entirety. We shall issue a peremptory writ of mandate directing the trial court to vacate its August 28, 2014 order, and to comply with our initial direction.2 We take this opportunity to give further instructions.