Cooper v. Dunmore Homes

Filed 8/31/07 Cooper v. Dunmore Homes 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

----

In these consolidated cases we decide principally that a letter from counsel with advice to a group of clients is subject to the attorney-client privilege even though some of the client recipients have disclosed it to the opposing party.

Plaintiff homeowners represented by Kasdan Simonds Riley & Vaughan, LLP (the Law Firm) sued their home builder, defendant Dunmore Homes, Inc. (Dunmore) in two separate actions for construction defects. Dunmore hired a representative to settle disputes with amenable homeowners outside the litigation. During separate settlement talks, two plaintiff homeowners (the Patricks and the Swans) each gave defendants representative a letter they had received from the Law Firm (collectively, the client letters). The client letters disclose to plaintiff homeowners the financial and strategic aspects of proving up claims in the respective lawsuits and request settlement authority.

Dunmore filed a motion in each case seeking a determination that it has the right to further disclose the client letters, e.g., to others with an interest in the litigation and to the Legislature. In each case the trial court ruled that the client letters are subject to the attorney‑client privilege, issued a protective order preventing further disclosure, and sealed the record to prevent further disclosure.

Dunmore appeals contending the trial courts orders are unwarranted, procedurally deficient, and improperly prevent it from using the client letters in the litigation or to bring to the attention of the Legislature perceived predatory practices of attorneys who sue home builders. Insofar as the orders are appealable we shall affirm them.

FACTUAL AND PROCEDURAL BACKGROUND

The Law Firm brought these two lawsuits (hereafter Jones and Cooper, respectively) against Dunmore, alleging construction defects. Jones originally addressed 44 homes (see fn. 1, ante) and Cooper an additional 114 homes built by Dunmore in the same subdivision.

Dunmore retained Carol Martin, an independent consultant, to communicate with homeowners and to negotiate settlement of any defect claims, by contract, outside the litigation. Plaintiff homeowners who so settled would then instruct the Law Firm to dismiss them from the litigation.

The Patricks

By a letter dated June 16, 2005, the Law Firm advised Larry Patrick and Kimberly Kile-Patrick, plaintiff homeowners in the Cooper action, of its assessment of the status of the litigation, including the state of the evidence concerning alleged construction defects (the Patricks letter). The Patricks letter also discussed the law of construction defects and advocated in favor of a detailed request for settlement authority. The Patricks gave the letter to Martin, Dunmores representative.

The Patricks agreed to a contract settlement with Dunmore in June 2005. By a letter dated June 8, 2005, they informed the Law Firm of their settlement decision and requested dismissal from the litigation. A delivery receipt indicates the June 8 letter was received by the Law Firm on June 20, 2005. The Patricks were dismissed from the Cooper action (case No. 03AS06991) on August 11, 2005.

The Swans^[2]

By a letter dated July 8, 2005, the Law Firm sent John and Lillie Swan, plaintiff homeowners in the Jones action, a letter identical in substance to the one sent to the Patricks. The Swans also gave their letter (the Swans letter) to Martin, Dunmores representative.

The Swans, like the Patricks, also decided to settle with Dunmore. By a letter dated July 5, 2005, and signed on July 15, 2005, the Swans informed the Law Firm of their settlement decision and requested dismissal from the litigation. There is no evidence that the July 15 letter was posted to or received by the Law Firm. However, the Swans sent another letter to the Law Firm, dated October 3, 2005, captioned SECOND REQUEST, which has a return receipt dated October 7, 2005. The Swans were dismissed from case No. 05AS01766 (now the Jones action) on October 19, 2005.

Dunmores Motion

In November of 2005 Dunmore filed a discovery motion asking a special master, who had been appointed to review discovery issues in the Cooper case, to rule that the two client letters (the Patricks letter and the Swans letter) are not privileged. The Law Firm opposed the motion on grounds that the client letters are protected by the attorney-client privilege, that correspondence with the Patricks is irrelevant and moot because they had been dismissed from the Cooper action, and that [a]ny information, strategy or evaluation conveyed by [the Law Firm] in the client letters would not in any manner relate to information, strategies or evaluations conveyed by [the Law Firm] to any other plaintiffs. In a preliminary ruling on the initial briefs, the special master denied the motion. Dunmore requested a formal hearing.

After further, voluminous briefing the Law Firm contended, inter alia, that the special master had no authority to rule on the issue. In response Dunmore agreed to withdraw the motion. Dunmore then filed the motion for a determination of waiver of privilege before the superior court in the Cooper case. It lodged the moving papers conditionally under seal, assertedly pursuant to former California Rules of Court, rule 243.2(b)(3) (now rule 2.551(b)(3)).^[3]

The Law Firm opposed the motion and moved for a protective order as to the client letters. The Law Firm argued, inter alia, that under Evidence Code section 912,^[4]the Patricks could not waive the privilege for the remaining plaintiff homeowners. The subject letter contains privileged information related to the unique and individual claims of the Patricks. In addition, however, the [Patricks] letter contains privileged information related to the claims of the other remaining [plaintiff homeowners]. These [plaintiff homeowners] have not waived the privilege and the contents of the [Patricks] letter cannot be discovered in relation to their claims in the action.

The Law Firm also argued that Dunmores motion should not be granted because: (1) the Patricks letter is irrelevant because a global settlement had been agreed to in the Cooper case and (2) Assuming arguendo that waiver of the privilege is found, the contents of the letter are moot as the information contained therein is only relevant to the Patricks claim and not the claims of the remaining [plaintiff homeowners] . . . .

After oral argument (conducted in camera as to the client letters) and supplemental briefing, the trial court in the Cooper case issued a written decision denying the motion of Dunmore and finding that the attorney‑client privilege had not been waived. In order to give effect to the finding of privilege, the court ordered that unredacted papers referring to the client letters be redacted and that all the unredacted papers be sealed.

While the matter was proceeding in the Cooper case, Dunmore filed a similar motion in the Jones case,^[5]for a determination that the client letters were not privileged. The Law Firm filed a similar cross-motion for a protective order on the ground of privilege and a motion to seal the record. The trial court in the Jones case denied the motion of Dunmore and granted the protective order and motion to seal sought by the Law Firm. [T]he [Swans] letter is protected by the attorney‑client privilege, which the Swans may not waive as to the remaining [plaintiff] homeowners who are still involved in the litigation. Dunmore appeals from the trial courts orders in both the Cooper and Jones cases.

DISCUSSION

I. The Client Letters Are Subject to the Attorney-Client Privilege

Dunmore contends that the trial courts erred in denying its motions and in granting relief to the remaining plaintiff homeowners represented by the Law Firm. It first argues that plaintiff homeowners have no attorney‑client privilege as to the client letters because the Law Firm argued in the Cooper case that the Patricks letter has no relevance to other plaintiff homeowners. The argument is unpersuasive.

We first note the pertinent statutory text concerning attorney‑client privilege in section 954: Subject to 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^[6]from disclosing, a confidential communication^[7]between client and lawyer. (Italics added.) Section 912 states in pertinent part: (a) . . . [T]he right of any person to claim a privilege provided by Section 954 . . . is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to claim the privilege. [] (b) Where two or more persons are joint holders of a privilege provided by Section 954 . . . , a waiver of the right of a particular joint holder of the privilege to claim the privilege does not affect the right of another joint holder to claim the privilege.

On the face of the matter, the content of the client letters at issue falls within the definition of a confidential communication between client and lawyer. ( 952.) Because of the tenor of the client letters and because they are substantively identical, disclosing their content would appear to result in disclosure of a confidential communication between the remaining plaintiff homeowners and their lawyers. Hence, it appears to be within the privilege of those plaintiff homeowners to refuse to disclose and to prevent others from disclosing their content.

However, Dunmore argues that this apparent privilege is defeated by a judicial admission that there is no privilege as to the remaining plaintiff homeowners. Dunmore characterizes the Law Firms irrelevancy argument as a judicial admission that the client letters do not relate to information, strategies or evaluations as to the other [plaintiff] homeowners[] claims.

Judicial admission is the label applied when a court accepts a statement of a party or counsel as a binding stipulation conceding the truth of some fact that would otherwise be subject to proof by evidence. (See 9 Wigmore, Evidence (Chadbourn rev. 1981),  2588, p. 821.) Usually it is applied to solemn formal statements in complaints, answers, replies to requests for admissions, and stipulations at trial. (See, e.g., 4 Witkin, Cal. Procedure (4th ed. 1997) Pleading,  413, pp. 510-511.) However, assertions in briefs have, in some circumstances, been taken as judicial admissions. (See Roman, Judicial Admissions (1995) 22 Pepperdine L.Rev. 981, 1001-1004, and cases cited therein (hereafter Judicial Admissions).)

Where an assertion is made assuming arguendo or upon inconsistent pleas, courts are reluctant to deem it a judicial admission. (Judicial Admissions, supra, 22 Pepperdine L.Rev. at pp. 993-995; NORCAL Mutual Ins. Co. v. Newton (2000) 84 Cal.App.4th 64, 80-81, fn. 11.) Moreover, as a general rule, the trial court has discretion to avoid the consequence of conclusiveness of such an admission. (See 9 Wigmore, Evidence, supra,  2590, pp. 822-823.) This discretion extends to consideration of evidence actually introduced that is inconsistent with the fact stipulated. (Id. at p. 823, fn. 2.)

Dunmore makes no showing that it brought this claim of judicial admission in the Law Firms briefs to the attention of the trial court. The claimed admission was made [a]ssuming arguendo that the waiver of the privilege is found. It is inconsistent with the contrary assertion in the Law Firms trial brief that the [client] letter[s] contain[] privileged information related to the . . . claims of the other remaining [plaintiff homeowners]. It is also inconsistent with the evidence actually submitted, as the client letters to the Patricks and the Swans are virtually identical and the content unmistakably implies that the advice and summary of the state of the evidence is generic. Indeed, Dunmore, in seeking to use the client letters at trial, is necessarily of the view that the content is relevant evidence as to the other plaintiff homeowners.

In these circumstances, there is no tenable appellate claim that the trial court erred in failing to take this remark, sua sponte, as a judicial admission. The trial court was not required to find that the attorney‑client privilege of the other plaintiff homeowners would not be infringed by further disclosure of the client letters.

II. The Attorney-Client Privilege Was Not Waived

Dunmores remaining arguments concerning the attorney‑client privilege are that the trial courts erred in failing to find that the privilege was waived. The first waiver argument is that the Law Firm waived the attorney‑client privilege by failing promptly to move for a protective order in response to Dunmores motion for a determination of no privilege. The second argument is that the Law Firm waived the attorney‑client privilege by opposing a determination of Dunmores motion. The third argument is that the Law Firm waived the attorney‑client privilege by failing to seek an order prohibiting Dunmores representative Martin from disclosing the client letters. None of the waiver arguments is persuasive.

A. There Was No Waiver by Delay of the Law Firm

As Dunmore notes, there are three general approaches to the question of inadvertent waiver of privilege. Three principal approaches have emerged to the problem of inadvertent disclosure of privileged materials. First, confidentiality generally is a requirement for a privilege. From that principal [sic], one line of cases holds a party almost strictly responsible for loss of its privilege, intended or not. On the other hand, waiver usually is defined as an intentional relinquishment of a known right. Hence, another line of cases holds that one cannot inadvertently waive a privilege. A plurality of courts do not like the results under either of those doctrines. Most of these courts take middle courses, weighing factors such as the precautions taken to prevent the disclosure, the frequency of such incidents, the extent of the disclosure which has resulted, any aspects of compulsion surrounding the disclosure, the promptness of efforts to correct the disclosure, the interests of justice, and who the discloser was, in deciding whether the privilege has been waived. (Annot., Waiver of Evidentiary Privilege by Inadvertent Disclosure‑‑State Law (1997) 51 A.L.R.5th 603, 634, fns. & citations omitted (hereafter Annot. Waiver).)

Dunmore suggests that we should adopt the plurality middle course view and find a waiver on its claim that the Law Firm was dilatory in failing to promptly file counter-motions for protective orders. Assuming we were free to and amenable to adopting the plurality view,^[8]we do not see significant support for waiver in the delay on which Dunmore relies. When the Law Firm became aware of the disclosure, and during the entire period of purported delay, the issue of privilege vel non was sub judice. In the circumstances, it was not unreasonable for the Law Firm to take the submission of the question by Dunmore to judicial resolution as a representation that Dunmore would not allow further disclosure until the question was affirmatively resolved by the courts. (Cf. State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, 656-657.)

Commentators have suggested that the term waiver is inapt for this kind of problem and that it is more accurate to view the question as one of estoppel. (See Annot. Waiver, supra, 51 A.L.R.5th at pp. 663-664.) In this situation that would mean conduct leading an opponent to act upon the belief that the privilege had been surrendered. (Cf.  623.) There was nothing in the conduct of the Law Firm, which immediately and continuously claimed the client letters were privileged, that could have justified any such expectation.

B. There Was No Waiver by the Law Firm in Opposing
Any Determination of Dunmores Motion

Dunmore next argues that a waiver should have been predicated on the Law Firms object[ing] to any hearing or review of the matter by the Special Master or the court. Dunmore cites remarks in the Law Firms briefs that the content of the letters are moot as the recipients had been dismissed from the lawsuits. These isolated remarks do not constitute an objection to any judicial resolution of the issues. Read in context, when plaintiff homeowners were affirmatively seeking protective relief, they were only arguing against resolution of the issue of privilege in favor of Dunmore.

C. Failing to Seek an Order Explicitly Prohibiting Dunmores Representative
Martin from Disclosing the Client Letters Was Not a Waiver

Dunmores third waiver argument is that the trial courts erred in not finding that the Law Firm waived the attorney‑client privilege by failing to seek an order expressly prohibiting Dunmores representative Martin from disclosing the client letters. Dunmore submits that granting relief based on privilege is unjustified when, as it claims is the case here, the cat is out of the bag. The Law Firm, on behalf of plaintiff homeowners, replies that there was no need for such an order as Martin was bound as an agent of Dunmore. Dunmores argument, not raised in the trial court, is forfeited.

We will assume for the sake of discussion that Martin is not bound as an agent by the protective orders issued. Nonetheless, failure to expressly subject her to a protective order does not result in waiver of the privilege. We are not offered and do not discern a statutory basis for such a waiver claim. Dunmore cites no authority for its argument. Nor does Dunmore explain why waiver should result from this consideration, beyond the cat is out of the bag assertion. The pertinence of the information having been disclosed to persons other than the party hindered by protective relief is that it presents the possibility of relief being futile. However, that is a prudential consideration for the trial court. It is not a basis for a claim of waiver of the privilege. Privilege can endure as a basis for protective relief against a party even though information has become public knowledge. (See Annot. Waiver, supra, 51 A.L.R.5th at p. 648.)

The possibility that Martin or any of the present or former plaintiff homeowner recipients of the client letters might, lawfully or not, further disclose their contents does not provide a basis for overturning the protective relief awarded. The claim that Martin or others should have been expressly subjected to the protective orders was not presented by Dunmore to the trial courts. If it had been, the claimed defect could have been remedied. In these circumstances we deem the point beyond the scope of this appeal. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 394, pp. 444-445, italics omitted [it is unfair to the trial judge and to the adverse party to take advantage of a [potential] error on appeal when it could easily have been corrected at the trial].)

None of the arguments by Dunmore for waiver of the attorney‑client privilege is persuasive. Dunmores contention that the trial courts erred in denying its motions because of a judicial admission of lack of privilege or on grounds of waiver is not meritorious.

III. Dunmores Additional Claims of Error Are Unavailing

Dunmore tenders various additional arguments of claimed error which, in view of our conclusions concerning the attorney‑client privilege, are moot or warrant only summary response. These arguments include: (1) that Dunmores constitutional right to freedom of speech is infringed by the orders, (2) that the orders sealing records are procedurally infirm, and (3) that work product privileges are inapplicable or not cognizable.

Dunmore correctly notes that the orders below could raise concerns about constitutional protections of freedom of speech. The only specific argument tendered is that the orders sealing records do not pass constitutional muster because the facts do not support a finding of an overriding interest warranting sealing of records. Dunmore concedes that the attorney‑client privilege might constitute such an interest. (See NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1222, fn. 46 (NBC Subsidiary) [protection of information within attorney-client privilege constitutes overriding interest].)^[9] The only arguments Dunmore offers about why the interest might not suffice are: (1) that the privilege has been waived and (2) that no prejudice to the interest in upholding the attorney‑client privilege inheres in disclosing the content of the letters. As we have explained, the privilege has not been waived. As to prejudice, any disclosure of matter within the privilege is prejudicial to the interest in inducing candid communications, which is the purpose served by upholding it.^[10]

The asserted desire to disclose the privileged information to the Legislature does not alter this calculus. Notably, the Legislature itself has expressly extended the protection of the attorney‑client privilege to its own proceedings: Proceeding means any action, hearing, investigation, inquest, or inquiry (whether conducted by a court, . . . legislative body, or any other person authorized by law) . . . . ( 901.)

Dunmore also complains of claimed procedural irregularities in the orders sealing records. These are beyond the scope of this appeal. A closure or sealing order is not in and of itself an appealable order. (Code Civ. Proc.,  904.1; see, e.g., NBC Subsidiary, supra, 20 Cal.4th at p. 1226.)^[11] The orders properly at issue in this consolidated appeal are the protective orders to the extent they enjoin Dunmore (and its agents) from further disclosure of the privileged letters, obtained outside the context of discovery, to persons outside this litigation. (See Meehan v. Hopps (1955) 45 Cal.2d 213, 215.)^[12] This component of the protective orders is warranted by the attorney‑client privilege. The only cognizable aspect of the proceedings that bears on the contemporaneous sealing orders would be one which somehow defeats the attorney‑client privilege. As there is no such argument tendered that we have not yet discussed and rejected, we have no occasion to consider or discuss further claimed procedural irregularities of the orders sealing the records.

Similarly, the arguments concerning work product privileges are immaterial. Those arguments only come into play if the attorney‑client privilege is defeated in some fashion. That is not the case.

DISPOSITION

The orders of the trial courts insofar as they are subject to this consolidated appeal are affirmed. Respondents shall recover their costs on appeal. (Cal. Rules of Court, rule 8.276(a)(2), (3).)

BUTZ , J.

We concur:

BLEASE , Acting P. J.

HULL, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line Lawyers.

^[1] The action was originally captioned John A. Swan et al., plaintiffs and respondents. However, the Swans have been dismissed from the case as will be further discussed. The lead plaintiff and respondent is now Wally Jones.

^[2] See footnote 1, ante.

^[3] Dunmore served a notice on plaintiff homeowners asserting that the papers would be placed in the public court file unless plaintiffs filed a timely motion to seal pursuant to the California Rules of Court. However, the authority upon which they relied, former rule 243.2(b)(3)(A) (now rule 2.551(b)(3)(A)), pertains to records produced in discovery that are subject to a confidentiality agreement. The client letters at issue in this case are not within that category.

^[4] Undesignated statutory references are to the Evidence Code.

^[5] See footnote 1, ante.

^[6] The Law Revision Commission comment regarding section 954 reinforces the broad reach of the term another: Eavesdroppers. Under Section 954, the lawyer-client privilege can be asserted to prevent anyone from testifying to a confidential communication. Thus, clients are protected against the risk of disclosure by eavesdroppers and other wrongful interceptors of confidential communications between lawyer and client. . . . []

The use of the privilege to prevent testimony by eavesdroppers and those to whom the communication was wrongfully disclosed does not, however, affect the rule that the making of the communication under circumstances where others could easily overhear it is evidence that the client did not intend the communication to be confidential. (7 Cal. Law Revision Com. Rep. (1965) p. 174, 3d & 5th pars., reprinted in 29B.3 Wests Ann. Evid. Code (1995 ed.) foll.  954, pp. 231-232.)

^[7] As used in this article, confidential communication between client and lawyer 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. ( 952.)

^[8] The exclusive means by which the attorney/client privilege may be waived are specified in section 912 of the Evidence Code. These are (1) when the holder of the privilege, without coercion, and in a nonconfidential context, discloses a significant part of the communication or consents to such disclosure by anyone, and (2) when there is a failure to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to do so. (Motown Record Corp. v. Superior Court (1984) 155 Cal.App.3d 482, 492; also cf., e.g., Transamerica Title Ins. Co. v. Superior Court (1987) 188 Cal.App.3d 1047, 1052; Annot. Waiver, supra, 51 A.L.R.5th at pp. 644-645, 667-669 and cases cited therein.)

^[9] Also compare State Comp. Ins. Fund v. WPS, Inc., supra, 70 Cal.App.4th at pages 656-657 (an attorney receiving apparently privileged documents due to inadvertence must eschew examination and notify the holder); but see Hurvitz v. Hoefflin (2000) 84 Cal.App.4th 1232, 1243 (And indeed, [the defendant doctors] can point to no case where any court in the nation has held a threatened violation of the physician-patient privilege, or any other privilege, justifies a prior restraint on speech). Further, [a]lthough litigants do not surrender their First Amendment rights at the courthouse door [citation], those rights may be subordinated to other interests that arise in this setting. (Seattle Times Co. v. Rhinehart (1984) 467 U.S. 20, 32, fn. 18 [81 L.Ed.2d 17, 27, fn. 18].)

^[10]Protecting the confidentiality of communications between attorney and client is fundamental to our legal system. The attorney-client privilege is a hallmark of our jurisprudence that furthers the public policy of ensuring the right of every person to freely and fully confer and confide in one having knowledge of the law, and skilled in its practice, in order that the former may have adequate advice and a proper defense. [Citation.] [Citation.] (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1146 [the privilege is relevant in determining whether law firm should be disqualified].) It is no mere peripheral evidentiary rule, but is held vital to the effective administration of justice. (People v. Superior Court (Laff)(2001) 25 Cal.4th 703, 715.)

^[11]The opinion in NBC Subsidiary concludes as follows: [T]he burden imposed by requiring trial courts to give notice of a closure hearing and make the constitutionally required findings, and the ensuing burden imposed by permitting review of closure orders by extraordinary writ, will not unduly encumber our trial or appellate courts. (NBC Subsidiary, supra, 20 Cal.4th at p. 1226.)

^[12]Meehan v. Hopps draws the line between injunctive relief, which is subject to appeal, and control of counsel and all other persons in any manner connected with a judicial proceeding in matters appertaining thereto, which is generally not subject to appeal, in the following passage:

[The defendant] correctly contends that the motion for a restraining order falls within [former] section 963 of the Code of Civil Procedure [repealed in 1968, now section 904.1], which provides that an appeal may be taken  . . . 2. From an order . . . refusing to grant or dissolve an injunction. . . . The plaintiffs argue that the order in question is not an order refusing to grant an injunction; rather that it is merely an exercise of the trial courts inherent power to  . . . provide for the orderly conduct of proceedings before it . . .  and to  . . . control in the furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter appertaining thereto. (Code Civ. Proc.,  128.)

While the trial court might have power to act under [Code of Civil Procedure] section 128, it is beyond question that [the defendant] specifically invoked the equity power of the court by his motion. He asked for an order restraining and enjoining [the] plaintiffs attorneys, not only to prevent them from participating in the case but also to restrain them from using or making available out of court the information [at issue]. (Meehan v. Hopps, supra, 45 Cal.2d at p. 215.)