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County of Los Angeles Board of Supervisors v. Superior Court (ACLU of Southern California)

California Court of Appeals, Second District, Third Division

April 13, 2015

LOS ANGELES COUNTY BOARD OF SUPERVISORS et al., Petitioners,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent ACLU OF SOUTHERN CALIFORNIA et al., Real Parties in Interest.

[REVIEW GRANTED BY CAL. SUPREME COURT]

ORIGINAL PROCEEDINGS in mandate. Luis A. Lavin, Judge. Los Angeles County Super. Ct. No. BS145753

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COUNSEL

John F. Krattli and Mark J. Saladino, County Counsel, Roger H. Granbo, Assistant County Counsel, Jonathan McCaverty, Deputy County Counsel; Greines, Martin, Stein & Richland, Timothy T. Coates and Barbara W. Ravitz for Petitioners.

Horvitz & Levy, Lisa Perrochet, Steven S. Fleischman and Jean M. Doherty for Association of Southern California Defense Counsel as Amicus Curiae on behalf of Petitioners.

No appearance for Respondent.

Peter J. Eliasberg for Real Parties in Interest ACLU of Southern California and Eric Preven.

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Davis Wright Tremaine, Jennifer L. Brockett and Nicolas A. Jampol for Real Party in Interest ACLU of Southern California.

OPINION

ALDRICH, J.

The question we resolve in this writ proceeding is whether billing invoices sent by an attorney to a client must be disclosed pursuant to the California Public Records Act (CPRA; Gov. Code, § 6250 et seq.), or whether they are protected by the attorney-client privilege. Both the CPRA and the attorney-client privilege advance public policies of the highest order: the CPRA fosters transparency in government, and the attorney-client privilege enhances the effectiveness of our legal system. In the instant matter, these two interests collide. We conclude that, because the CPRA expressly exempts attorney-client privileged communications from the CPRA’s reach, the tension must here be resolved in favor of the privilege. Because the invoices are confidential communications within the meaning of Evidence Code section 952, they are exempt from disclosure under Government Code section 6254. subdivision (k). Accordingly, we grant the writ petition.

FACTUAL AND PROCEDURAL BACKGROUND

In the wake of several publicized investigations into allegations that the Los Angeles County Sheriff’s Department used excessive force on inmates housed in the Los Angeles County jail system, real parties in interest the ACLU of Southern California and Eric Preven (collectively, the ACLU) submitted a CPRA request to petitioners the Los Angeles County Board of Supervisors and the Office of the Los Angeles County Counsel (collectively, the County) for invoices specifying the amounts that the County of Los Angeles had been billed by any law firm in connection with nine different lawsuits “brought by inmates involving alleged jail violence.” It also sought disclosure of service agreements between the County and two consultants and an “implementation monitor.” The ACLU sought the documents to enable it to “ ‘determine what work was being done on the lawsuits, the scope of that work, the quality of the representation, and the efficiency of the work.’ ”

The County agreed to produce copies of the requested documents related to three such lawsuits, which were no longer pending, with attorney-client privileged and work product information redacted. It declined to provide billing statements for the remaining six lawsuits, which were still pending. It averred that the “detailed description, timing, and amount of attorney work performed, which communicates to the client and discloses attorney strategy, tactics, thought processes and analysis” were privileged and therefore exempt from disclosure under Government Code section 6254, subdivision (k), as

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well as under the CPRA’s “catchall” exemption, Government Code section 6255, subdivision (a). It contended the service agreements were also protected by, inter alia, Business and Professions Code sections 6149 (which deems written fee contracts confidential communications) and 6148.

The ACLU filed a petition for writ of mandate in the superior court, seeking to compel the County to “comply with the [CPRA]” and disclose the requested records for all nine lawsuits. The ACLU averred: “Current and former jail inmates have brought numerous lawsuits against the County and others for alleged excessive force. The County has retained a number of law firms to defend against these suits. It is believed that the selected law firms may have engaged in ‘scorched earth’ litigation tactics and dragged out cases even when a settlement was in the best interest of the County or when a settlement was likely. Given the issues raised by the allegations in these complaints and the use of taxpayer dollars to pay for the alleged use of scorched earth litigation tactics, the public has a right and interest in ensuring the transparent and efficient use of taxpayer money.” The ACLU argued that the billing records were not generally protected by the attorney-client or work product privileges, or by the Business and Professions Code sections, and did not fall within any of the statutory exceptions to the CPRA. The ACLU acknowledged that “to the extent that a particular billing description reflects an attorney’s legal opinion and advice to the County, or reveals the attorney’s mental impressions or theories of the case, such information may properly be redacted under the attorney-client privilege or work product doctrine.” However, the ACLU expected that such entries would be “few in number, and the remainder of an attorney’s billing records is not protected from disclosure at all.”

The County responded by reiterating that the billing records were protected by the attorney-client privilege; that the Business and Professions Code sections demonstrated information about financial arrangements and services was privileged and confidential; and that the billing records were protected from disclosure under the CPRA’s catchall exemption.

In a thoughtful decision, the superior court granted the petition for writ of mandate insofar as it pertained to the billing records.[1] The court held that the County had failed to show the billing records were attorney-client privileged communications exempt from disclosure. It reasoned that Evidence Code section 952, which defines attorney-client privileged communications, “does not automatically apply to any communication between an attorney and his or

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her client.” The party claiming the privilege must assert specific facts demonstrating how the challenged document qualifies as a privileged communication. In the court’s view, the County had “not alleged any specific fact demonstrating why the billing statements, with proper redactions concealing actual attorney-client privileged communications or attorney work product, would qualify as privileged communications exempt from disclosure under Evidence Code section 952....” Further, the County had failed to produce any “actual evidence concerning the contents of the billing statements, including whether they were produced for a litigation-related purpose.”

The court also rejected the County’s argument that the billing statements should be considered confidential in light of Business and Professions Code sections 6148 and 6149. The court observed that Business and Professions Code section 6148, subdivisions (a) and (b), describes what types of information should be included in fee agreements and billing statements, respectively. However, Business and Professions Code section 6149 deemed only fee agreements to be confidential communications for purposes of the attorney-client privilege. Applying the standard canons of statutory construction, the court concluded the Legislature did not intend the information in billing statements to be deemed confidential.

Finally, the court found the billing statements were not exempt from disclosure under the CPRA’s “catchall” exemption, because the County had failed to demonstrate a clear overbalance in favor of nondisclosure justifying withholding the requested records.

Accordingly, the court ordered the County to release “all invoices issued by the County’s outside attorneys in the nine cases specified” in the CPRA request. However, “[t]o the extent any documents that are responsive to the Requests reflect an attorney’s legal opinion or advice, or reveal an attorney’s ...


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