Filed 12/11/17 Government Employees Insurance Co. v. Superior Court CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

GOVERNMENT EMPLOYEES INSURANCE COMPANY,

Petitioner,

v.

THE SUPERIOR COURT OF ORANGE COUNTY,

Respondent;

MOE BOUTORABI,

Real Party in Interest.




G055721

(Super. Ct. No. 30-2017-00912660)

O P I N I O N

Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Thierry P. Colaw, Judge. Petition granted; writ issued.
Sheppard, Mullin, Richter & Hampton, John T. Brooks, Karin Dougan Vogel, and Suzanne Y. Badawi for Petitioner.
Law Offices of Burg & Brock, Cameron Y. Brock and Craig D. Rackohn for Real Party in Interest.

* * *

THE COURT:*
“The attorney-client privilege . . . confers a privilege on the client ‘to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer . . . .’” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 732 (Costco).) Courts “may not require disclosure of information claimed to be privileged . . . in order to rule on the claim of privilege . . . .” (Evid. Code, § 915, subd. (a) (section 915); see Costco, supra, at pp. 736-740.) “[S]ection 915 prohibits a court from reviewing an allegedly privileged attorney-client communication to determine whether it is privileged because the nature of the attorney-client privilege requires absolute protection for all confidential communications between an attorney and a client regardless of their content. [Citation.] Courts have no power to create exceptions to section 915’s mandate. [Citation.] The court therefore may not review the content of the communication to determine whether it is privileged.” (DP Pham LLC v. Cheadle (2016) 246 Cal.App.4th 653, 667-668.)
On November 3, 2017, real party in interest Moe Boutorabi applied ex parte for “an order to compel [petitioner] to produce emails removed from the claim file” and for “an in-camera review of the emails between the claim representatives and . . . an attorney in [petitioner’s] claim department to determine if there is an attorney client relationship to preclude these emails from being produced.” Some of the emails sought had been withheld from discovery pursuant to privilege claims described on a privilege log prepared by petitioner.
On December 1, 2017 (having continued its hearing of the ex parte application), respondent court issued a minute order granting real party in interest’s motion to compel petitioner Government Employees Insurance Company to produce specified emails from a claims file. The production of documents was ordered to occur by December 5 (a jury trial is scheduled to begin on Monday, December 11, which explains the tight deadline). As to emails which petitioner claims are protected by the attorney-client privilege, the court indicated it would conduct a review of the emails in camera. The court instructed petitioner to lodge the purportedly privileged documents with the court “in a sealed envelope, clearly labeled.” At the hearing, respondent court indicated it would “take a look at the documents and make a determination as to whether they should be produced or not.”
On December 4, 2017, petitioner filed a petition for writ of mandate and request for an immediate stay of the December 1 minute order. The same day, this court granted an immediate stay of the order to the extent it required petitioner to lodge with the court documents is contends are privileged. Our order invited opposition by December 7, and indicated real party should address the advisability of issuing a peremptory writ of mandate in the first instance. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180 [minimum notice requirements for peremptory writ in the first instance include notice that such relief is being considered and opportunity to file opposition].) Real party filed an opposition, contending the attorney-client privilege does not apply in this case because the emails at issue were sent to in-house counsel, not litigation counsel.
A peremptory writ in the first instance should issue only in cases of “‘unusual urgency’” or “‘clear error under well-settled principles of law and undisputed facts . . . .’” (Banning Ranch Conservancy v. Superior Court (2011) 193 Cal.App.4th 903, 919.)
Here, both rationales apply. First, the scheduled trial date is fast approaching, making delay in resolving this petition a serious imposition on the parties. Moreover, this is a Code of Civil Procedure section 36 case, entitled to special preference for prompt resolution because real party is elderly.
Second, having reviewed and considered the petition, petitioner’s appendix, and real party’s opposition, we conclude petitioner is clearly entitled to relief. Respondent court granted a motion to review documents in camera to assess privilege. As set forth above, the court’s order is prohibited by statute and Supreme Court case law. “[N]o purpose could reasonably be served by plenary consideration of the issue . . . .” (Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) Thus, it is appropriate here to issue a peremptory writ of mandate in the first instance.
Our holding here is limited. Respondent court erred by requiring petitioner to lodge documents for an in camera privilege determination. We explicitly are not reaching the question of whether the contested documents are in fact privileged. This is a potentially fact-intensive, disputed issue that was not made the subject of the petition. “The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship.” (Costco, supra, 47 Cal.4th 725, 733; id. at p. 735 [“privilege is not applicable when the attorney acts merely as a negotiator for the client or is providing business advice”]; but cf. Catalina Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1120-1121 [“deficient privilege log” does not waive attorney-client privilege].) Nothing in this opinion forecloses respondent court from concluding that the contested documents must be produced. Nor does this opinion preclude respondent court from requiring petitioner to come forward with additional non-privileged information (in a supplemental privilege log or at an evidentiary hearing) to assist in the determination of whether the contested documents are privileged.

DISPOSITION

Let a peremptory writ of mandate in the first instance issue directing respondent court (1) to vacate the portion of its order requiring petitioner to lodge documents with the court for a privilege determination, and (2) to issue a new and different order consistent with this opinion.
Petitioner shall be awarded its costs incurred in this proceeding. (Cal. Rules of Court, rule 8.493(1)(A).) Given the pending trial date and in the interests of justice, this decision is final five days after it is filed. (Cal. Rules of Court, rule 8.490(b)(2)(A).) Should they deem it desirable, the parties may stipulate to immediate issuance of the remittitur upon finality of this decision. (Cal. Rules of Court, rules 8.272(c)(1), 8.490(d).)