California Court of Appeal Sep 28, 2016 No. C070028Unpublished
Filed 9/28/16 Johnson v. Super. Ct. CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Yuba)
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JAMES JOHNSON et al., C070028
Petitioners, (Super. Ct. No. YCSCCVCV080000584) v.
THE SUPERIOR COURT OF YUBA COUNTY,
Respondent;
DENNIS L. PARKER et al.,
Real Parties in Interest.
Amid allegations of claim jumping, real parties in interest Dennis L. Parker, Sharon A.
Parker, Samuel L. Eversole, and Terri L. Allen (collectively Parker) filed an amended complaint
against petitioners James Johnson and William D. May (collectively Johnson) to quiet title and
for declaratory relief, adverse possession, and slander of title. The dispute arose over mining
claims to a stretch of the North Yuba River. Ultimately, respondent superior court found in favor of Parker, leaving the issue of punitive damages for future litigation. Respondent court reopened
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discovery pursuant to Civil Code section 3295, which authorizes discovery of a party’s financial
condition.1
Parker served discovery requests on Johnson, who objected to requests regarding the
amount and source of attorney fees paid and owed. Parker brought a motion to compel
discovery. Respondent court granted the motion and imposed $2,140 in sanctions. Johnson filed
a petition for writ of mandate or prohibition and request for stay of the discovery order. We
stayed the discovery order and issued an alternative writ of mandate. We shall deny the petition
for writ of mandate or prohibition and shall vacate the stay.
FACTUAL AND PROCEDURAL BACKGROUND In the present case, an alleged 10 pounds of gold hidden away by James Johnson forms
the basis for the underlying quarrel between the parties—conflicting claims over gold mining
along the North Yuba River—and also gives rise to the discovery dispute here at issue.
In the underlying litigation, Parker filed a second amended complaint to quiet title and for
declaratory relief, adverse possession, and slander of title. Ultimately, respondent court found
for Parker on the quiet title, declaratory relief, and slander of title causes of action. The court did
not address Parker’s request for punitive damages, but gave Parker leave to conduct discovery
pursuant to section 3295.
Parker served interrogatories on Johnson requesting information regarding “the amount
paid by you for attorneys fees in connection with this litigation” and “unpaid attorneys fees
owing by defendants to the law offices of David Young.” Johnson objected to the interrogatories
on grounds of attorney-client privilege, right to privacy, and relevance.
In response, Parker brought a motion to compel discovery and for sanctions. In the
motion, Parker stated: “As the court has witnessed, defendants have litigated this case
aggressively from its inception. They are now threatening to appeal. They have hired an Ivy
1 All further statutory references are to the Civil Code unless otherwise designated.
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League educated Los Angeles lawyer with offices in a high-rise in the Wilshire area. The
defendants, obviously girding for appeal, paid the per diem for the court reporter for trial. . . .
Testimony revealed that Mr. Johnson paid their other expert, Charles Watson, in cash– nine one
hundred dollar bills. [¶] Still . . . none of the defendants have disclosed that they have any non-
exempt assets whatsoever. And at least one witness has stated that Defendant James Johnson has
admitted to having had 10 pounds of gold.” Johnson opposed the motion, arguing legal fees paid
to an attorney are privileged and confidential.
Following oral argument, respondent court granted Parker’s motion to compel discovery and awarded sanctions, finding: “Plaintiffs have shown the information sought is discoverable;
i.e., that it is reasonably calculated to lead to discovery of admissible evidence. . . . The
information sought is the amount of attorney’s fees paid and owing and the sources from which
defendants pay their attorney and any documents in support of those responses. Plaintiffs seek
this information in their efforts to obtain financial-condition, discovery, as ordered pursuant to
Civil Code 3295. Defendants objected on the grounds of relevance, privacy and attorney-client
privilege. Defendants’ opposition argues only that the documents are privileged, but does not
cite any persuasive authority in support of this position. In granting this motion, the Court makes
no determination as to whether this information may later be determined to be relevant or
admissible at trial.”
The court’s order, filed on December 12, 2011, directed Johnson to respond by January 4,
2012, stating: “2. Such Defendants shall produce for inspection all documents in their
possession . . . indicating the source of payments made to [Johnson’s counsel] David Young. [¶]
3. Defendants did not have substantial justification for their original responses to discovery or
withholding the requested information, much of which was in the possession of their Counsel
David Young. Defendants Johnson and May, and attorney Young are each ordered to pay,
jointly and severally, to Plaintiffs . . . $2,140.”
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Johnson filed a petition for writ of mandate or prohibition with this court and request for
stay of the discovery order. We stayed respondent court’s discovery order and issued an
alternative writ of mandate.
DISCUSSION We review respondent court’s grant of the motion to compel and imposition of sanctions
under the abuse of discretion standard. We reverse a trial court’s determination of a motion to
compel discovery and imposition of discovery sanctions only if we find it an “ ‘arbitrary,
capricious or whimsical action.’ [Citations.]” (Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1102; See 2,022 Ranch v. Superior Court
(2003) 113 Cal.App.4th 1377, 1387.)
The court granted Parker’s motion to compel based on section 3295. Section 3295 states,
in part: “(a) The court may, for good cause, grant any defendant a protective order requiring the
plaintiff to produce evidence of a prima facie case of liability for damages pursuant to Section
3294, prior to the introduction of evidence of: [¶] (1) The profits the defendant has gained by
virtue of the wrongful course of conduct of the nature and type shown by the evidence. [¶] (2)
The financial condition of the defendant.”
Evidence Code section 911 provides, in part: “Except as otherwise provided by statute:
[¶] . . . [¶] (b) No person has a privilege to refuse to disclose any matter or refuse to produce any
writing, object, or other thing . . . .” In response to a motion to compel, the burden is on the
party claiming a privilege to establish entitlement to the attorney-client privilege.
(Zimmerman v. Superior Court (2013) 220 Cal.App.4th 389, 393.)
The privilege claimed here is the attorney-client privilege, one of the oldest privileges for
confidential communications recognized at common law. (8 Wigmore, Evidence (McNaughton
ed. 1961) § 2290, pp. 542-543.) In California the privilege is codified in Evidence Code section
954, as follows: “Subject to [Evidence Code] 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
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is claimed by: [¶] (a) The holder of the privilege; [¶] (b) A person who is authorized to claim
the privilege by the holder of the privilege; or [¶] (c) The person who was the lawyer at the time
of the confidential communication, but such person may not claim the privilege if there is no
holder of the privilege in existence or if he is otherwise instructed by a person authorized to
permit disclosure.”
Johnson argues Business and Professions Code section 6149 makes a written fee contract
a confidential communication subject to the attorney-client privilege. Therefore, respondent
court abused its discretion in compelling discovery of matters protected by both attorney-client privilege and the right to privacy under the California Constitution. In addition, Johnson
contends the imposition of monetary sanctions was improper, given the attorney’s duty to
preserve client confidentiality.
Business and Professions Code section 6149 states: “A written fee contract shall be
deemed to be a confidential communication within the meaning of subdivision (e) of [Business
and Professions Code] Section 6068 and Section 952 of the Evidence Code.” Business and
Professions Code section 6068, subdivision (e)(1) states it is the duty of an attorney “[t]o
maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets
of his or her client.”
“Confidential communication” subject to attorney-client privilege “means information
transmitted between a client and his or her 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.” (Evid. Code,
§ 952.) Both the client and the attorney may claim the privilege. (Evid. Code, § 954, subds. (a), (c).)
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Under Evidence Code section 917, “If a privilege is claimed on the ground that the matter
sought to be disclosed is a communication made in confidence in the course of the lawyer-client
. . . relationship, the communication is presumed to have been made in confidence and the
opponent of the claim of privilege has the burden of proof to establish that the communication
was not confidential.” (Evid. Code, § 917, subd. (a).) Johnson asserts the documents Parker
seeks are protected by the attorney-client privilege; therefore, Parker bears the burden of
establishing that the information sought is not confidential.
Parker concedes that under Business and Professions Code section 6149 written fee agreements between clients and counsel are privileged, but argues the discovery request does not
include such fee agreements. Moreover, according to Parker, the attorney-client privilege
extends only to the written fee contract itself, not to information regarding the amount of
attorney fees paid by the client. Parker also asserts that attorney fee payments, documents
indicating their source, and amount owing are not communications or information passed
between a client and counsel for purposes of Evidence Code section 952.
Under Parker’s analysis, Johnson has “not shown that there was any communication
made or knowledge imparted between a client and attorney in need of protection. . . . Since
Petitioners’ financial condition is now relevant and discoverable, the attorney payments and
amounts owing are not different from any other significant financial obligation. Whether
Petitioners paid their significant bills, and how much, and from what sources is relevant and
discoverable.”
We find Parker’s reasoning persuasive. The purpose of the attorney-client privilege “is to
encourage full and frank communication between attorneys and their clients and thereby promote
broader public interests in the observance of law and administration of justice. The privilege
recognizes that sound legal advice or advocacy serves public ends and that such advice or
advocacy depends upon the lawyer’s being fully informed by the client.” (Upjohn Co. v. United States (1981) 449 U.S. 383, 389 [66 L.Ed.2d 584].) It is given “in the belief that the benefits
derived therefrom justify the risk that unjust decisions may sometimes result from the
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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.’ (Morgan, Foreword, Am. Law.Inst. Code of
Evidence, p. 25-26.) Given the privilege, a client may make such a disclosure without fear that his attorney may be forced to reveal the information confided to him. ‘[T]he absence of the
privilege would convert the attorney habitually and inevitably into a mere informer for the
benefit of the opponent.’ (8 Wigmore, [Evidence (3d ed., 1940)] § 2380a, p. 813.)” (City &
County of S.F. v. Superior Court (1951) 37 Cal.2d 227, 235 (San Francisco).)
The privilege does not protect every utterance between an attorney and client. Indeed, a
statute protecting confidential communications “is strictly construed since it suppresses relevant
facts that may be necessary for a just decision. [Citations.]” (San Francisco, supra, 37 Cal.2d
227, 234.) It is difficult to fathom how communications between James Johnson and his attorney
on the merits of the conflicting gold mining claims would have been chilled by the possibility
that information regarding the amount of attorney fees charged or the sources of payment might
be disclosed in the future.
Numerous courts have found that, in the absence of unusual circumstances, the fact of a
retainer, the identity of a client, the conditions of employment, and the amount of the fee and
who paid it do not come within the privilege of attorney-client relations. (In re Michaelson (9th
Cir. 1975) 511 F.2d 882, 888 and cases cited therein.) An exception is made for cases in which
the existence of the attorney-client relationship might be incriminating to a client. (Ibid.)
“There are strong policy reasons why the existence of an attorney-client relationship, including the fee arrangement, should not be privileged absent incriminating circumstances such
as outlined above. The courts have inherent power to regulate the bar. The courts have the right
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to inquire into fee arrangements both to protect the client from excessive fees and to assist an
attorney in collection of his fee, but more importantly, the court may inquire into fee
arrangements to protect against suspected conflicts of interest. When an attorney is paid by
someone other than his client to represent that client there is a real and present danger that the
attorney may in actuality be representing not the interests of his client, but those of his
compensator. Not only does the client have a right to know who is paying his attorney, but the
court retains the right to satisfy itself that no conflict exists and that the attorney is fulfilling his
duty of loyalty to his client.” (In re Michaelson, supra, 511 F.2d at pp. 888-889.) We recognize there are circumstances where the confidentiality of communications
between attorney and client concerning payment for representation may be necessary to establish
a relationship of trust and confidence that is indispensable to the attorney-client relationship.
Thus, in People v. Canfield (1974) 12 Cal.3d 699, 703-704 (Canfield), an indigent defendant
with no ability to represent himself was required to disclose financial information in order to
receive the services of a public defender. The Supreme Court thought it “clear that if an accused
is informed that the first information he provides his attorney is not privileged, he would not
have the trust in his counsel so essential in providing effective representation. The problem is
particularly serious with respect to indigents represented by the public defender, there apparently
being a tendency on the part of many such defendants to regard the public defender as an arm of
the state working closely with the prosecutor.” (Id. at p. 705.) We also note that in criminal
cases the policies underlying the attorney-client privilege “assume particular significance.”
(People v. Meredith (1981) 29 Cal.3d 682, 691.) This is not a criminal case, and James
Johnson’s circumstances are not those of the indigent defendant in Canfield.
In the present case, the information sought, the amount of attorney fees, is not privileged
under the attorney-client privilege. It is not incriminating and it does not run afoul of Business
and Professions Code section 6149, since Parker does not seek the written fee agreements between James Johnson and his counsel. The trial court did not abuse its discretion in
compelling discovery and imposing sanctions for Johnson’s failure to comply.
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DISPOSITION The petition for writ of mandate or prohibition is denied. The stay previously issued is
vacated upon the finality of this decision. Parker shall recover costs in this original proceeding.
(Cal. Rules of Court, rule 8.493(a).)
RAYE , P. J.
We concur:
HULL , J.
BUTZ , J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that information regarding the amount of attorney fees paid and the sources of those payments is not protected by the attorney-client privilege in civil litigation, absent unusual circumstances such as potential incrimination.
Issues
Whether the amount of attorney fees paid and the sources of payment are protected by the attorney-client privilege.
Whether the trial court abused its discretion in compelling discovery of attorney fee information and imposing sanctions.
Disposition. denied
Quotations verified verbatim against the opinion
“Numerous courts have found that, in the absence of unusual circumstances, the fact of a retainer, the identity of a client, the conditions of employment, and the amount of the fee and who paid it do not come within the privilege”
“In the present case, the information sought, the amount of attorney fees, is not privileged under the attorney-client privilege.”