Filed 12/15/21 Magallanes v. Superior Court CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION FOUR

CAMILA LOPEZ MAGALLANES, 

a Minor, etc., 

Petitioner,

v.

THE SUPERIOR COURT OF 

LOS ANGELES COUNTY,

Respondent;

LOS ANGELES UNIFIED 

SCHOOL DISTRICT,

Real Party in Interest.

 B312794

 (Los Angeles County

 Super. Ct. No. BC684669)

 (Malcom Mackey, Judge)

 ORDER MODIFYING OPINION

 [NO CHANGE IN JUDGMENT]

THE COURT:*

It is ordered that the opinion filed herein on November 17, 2021, be 

modified as follows:
2

On page 3, in the first paragraph, delete “, including a statement 

that Magallanes’s friend had pushed the child, causing her to fall on an 

uneven floor.”

On page 4, in the first paragraph, delete “District counsel responded 

that he assumed Magallanes’s counsel took issue with “the statement 

where [Magallanes’s friend] pusher her and that’s why she fell.””

Also on page 4, in the third paragraph, delete the words “regarding 

the cause of her fall.”

On page 10, in the second paragraph, delete “, provided by 

Magallanes or her mother that the child was pushed by another student,.” 

On page 14, in the second paragraph, delete “in which Magallanes or 

her mother said that Magallanes was pushed by another student.”

On page 15, in the second paragraph, replace the phrase “that 

Magallanes was purportedly pushed by another student,” with “provided 

in the intake documents.”

There is no change in the judgment.

*MANELLA, P. J. WILLHITE, J. COLLINS, J.
Filed 11/17/21 Magallanes v. Superior Court CA2/4 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

SECOND APPELLATE DISTRICT

DIVISION FOUR

CAMILA LOPEZ MAGALLANES,

a Minor, etc.,

Petitioner,

v.

THE SUPERIOR COURT OF 

LOS ANGELES COUNTY,

Respondent;

LOS ANGELES UNIFIED SCHOOL 

DISTRICT,

Real Party in Interest.

 B312794

 (Los Angeles County

 Super. Ct. No. BC684669)

ORIGINAL PROCEEDINGS; Petition for Writ of Mandate from 

an order of the Superior Court of Los Angeles County, Malcom Mackey, 

Judge. Petition granted.

Blair & Ramirez, Oscar Ramirez, Matthew P. Blair; Parris Law 

Firm, R. Rex Parris, Susan S. Baker, Eric N. Wilson, Khail A. Parris

and Daniel Eli for Petitioner.
2

No appearance for Respondent.

Hurrel Cantrall, Thomas C. Hurrell, Diane Martinez; Vanderford 

& Ruiz, Rodolfo F. Ruiz, Maetha Jacobe and Ty Vanderford for Real 

Party in Interest.

__________________________

Petitioner Camila Lopez Magallanes petitions for a writ of 

mandate compelling the trial court to vacate its order granting an ex 

parte application filed by real party in interest Los Angeles Unified 

School District (the District) deeming the attorney-client privilege 

waived as to statements appearing in attorney intake documents that 

were disclosed to expert witnesses and opposing counsel. As explained 

below, we grant the petition and issue the writ directing the trial court 

to vacate its prior order deeming the attorney-client privilege waived, 

and instead issue an order denying the District’s application.

BACKGROUND

1. The Lawsuit and Discovery Dispute

As alleged in her complaint, while attending school in 2017, 

Magallanes (then seven years old) fell and struck her head on an 

asphalt playground. Through her mother and guardian ad litem, 

Magallanes sued the District for negligence, negligent supervision, and 

dangerous condition of public property, alleging inter alia that the 

school asphalt caused Magallanes to trip and fall. 
3

In April 2017, Magallanes and her mother sought legal 

representation from the Law Offices of Gary Berkovich. In connection 

with its representation of Magallanes, the office generated

approximately 20 pages of intake documents. One of the documents 

memorialized a description of the incident, as provided by Magallanes 

or her mother, including a statement that Magallanes’s friend had 

pushed the child, causing her to fall on an uneven floor. 

The Law Offices of Gary Berkovich were replaced by Blair & 

Ramirez as counsel for Magallanes. Between June and September

2019, a legal assistant for Blair & Ramirez emailed three of 

Magallanes’s expert witnesses Dropbox links to access “Medical 

Records,” “Academic Records,” “Responses to Discovery,” and “All 

Documents produced by” the District in discovery. The intake 

documents were inadvertently uploaded to one or more of the Dropbox 

links. 

Before one of Magallanes’s expert witnesses, Sharon Grandinette, 

was set to be deposed, Blair & Ramirez’s legal assistant sent District 

counsel Grandinette’s “expert file.” Among the hundreds of pages of 

documents in the file were the intake documents. 

While deposing Grandinette on May 5, 2021, District counsel 

sought to mark as an exhibit portions of the intake documents. After 

briefly reviewing the documents, Magallanes’s counsel interrupted the 

deposition: “page 33 to 55 appear to be attorney-client privileged 

documents. And so I don’t know how they were produced. I don’t know 

if it was inadvertently or mistakenly produced, but those need to be 

essentially destroyed because those are attorney-client protected 
4

documents . . . and need to be excised from the file.” District counsel 

responded that he assumed Magallanes’s counsel took issue with “the 

statement where [Magallanes’s friend] pushed her and that’s why she 

fell.” Magallanes’s counsel admonished District counsel that the 

documents were privileged, inadvertently disclosed, and were to be 

immediately destroyed. Both parties stipulated that they would refrain 

from transmitting or using the intake documents until the court ruled 

on whether disclosure of the intake documents waived the claim of 

privilege. 

2. The Ex Parte Applications

On May 11, 2021, the parties filed competing ex parte 

applications, the District seeking an order deeming the claim of 

privilege waived, and Magallanes seeking an order disqualifying 

District counsel for improperly using privileged communications. 

In its application, the District argued that Magallanes had waived 

her right to claim the attorney-client privilege over the statement 

regarding the cause of her fall, which was included in the intake 

documents that were disclosed to expert witnesses and District counsel. 

The application states in a footnote that the District had filed portions 

of the intake documents “concurrently . . . under seal.” One page of the 

intake documents wherein Magallanes or her mother summarized the 

incident was filed through the District’s notice of lodging. 

In her application, Magallanes argued that District counsel was 

dutybound to refrain from reviewing and using privileged material that 

had been inadvertently disclosed. In support, Magallanes’s counsel 
5

attached to his declaration portions of the Grandinette deposition 

transcript wherein counsel claimed the attorney-client privilege. 

Counsel also declared that his office had inadvertently disclosed prior 

counsel’s intake documents.

In her opposition to the District’s application, Magallanes listed 

various portions of the intake documents to demonstrate their 

conspicuous markings as privileged material. One of the redacted 

intake documents states, “Premise Liability Sign-Up” with a disclaimer 

“FOR OFFICE USE ONLY.” Another document states, “Retainer 

Agreement” and appears under law firm letterhead. Yet another 

document, also appearing under law firm letterhead, states “SOCIAL 

NETWORKING SITES WARNING/ATTORNEY CLIENT PRIVILEGE.” 

3. The Trial Court’s Ruling and Immediate Disclosure

The court held a hearing on both applications on Friday May 21, 

2021. Following argument of counsel, the trial court found 

Magallanes’s counsel had waived her claim of privilege, because “[o]nce 

you tell someone the secret, it is gone.” 

Following the court’s ruling the same day, the District notified one 

of its expert witnesses, John Brault, of the intake documents. During 

his deposition, taken the same day as the court’s ruling, Brault stated 

he had received the intake documents around 10:00 that morning. 

When asked by Magallanes’s counsel if anything in the intake 
6

documents had altered his expert opinion,1 Brault stated they did not. 

Brault did not know who filled out the summary of the incident. 

4. Motion to Stay and Petition for Writ of Mandate 

On May 24, 2021 (one court day after the trial court’s ruling), 

Magallanes filed an ex parte motion to stay the court’s ruling on the 

issue of waiver to allow Magallanes to file a petition for writ relief. The

court denied the application. 

On June 2, 2021, Magallanes filed a petition for writ of mandate 

and requested an immediate stay. In turn, we issued an order staying 

trial court proceedings until further order of the court, and directed the 

District to file a preliminary response to address the effect of: (1) 

Magallanes’s publicly filing exhibits disclosing information claimed to 

be privileged; and (2) assuming the disclosure was inadvertent, 

Magallanes’s failure to take any appropriate action to preserve the 

confidentiality of information. 

In its preliminary response, the District argued Magallanes had 

waived her claim of privilege by publicly filing the deposition transcript 

of Grandinette in the trial court, and filing one page of the intake 

documents as an exhibit to her writ petition. The District also argued 

1 The parties have not clarified the subject area in which Brault was 

designated an expert. However, in support of its preliminary response to our 

prior order, the District filed portions of transcript taken during Brault’s 

deposition. In that transcript, Brault stated he was an expert in gait. 
7

that Magallanes had failed to take corrective action to seal the 

document and transcript. 

In her reply to the District’s preliminary response, Magallanes 

argued that the statements appearing in the Grandinette deposition 

transcript were not subject to a sealing order because they did not 

constitute evidence (the only relevant statements appearing in the 

transcript were made by counsel). Magallanes also argued her counsel 

had inadvertently filed one of the intake documents with this court.

2

On July 9, 2021, we issued an alternative writ requiring the trial 

court either to: (1) after notice to the parties and an opportunity to be 

heard, vacate its prior order granting the District’s ex parte application 

to deem Magallanes’s attorney-client privilege waived, and enter a new 

order denying that application; or (2) in the alternative, show cause 

before this court why a peremptory writ of mandate ordering it to do so 

should not issue.3

The trial court held a hearing on September 24, 2021, to decide 

whether to change its prior order. Following argument of counsel, by 

2 Based on a declaration by Magallanes’s counsel, counsel received a

service copy of the District’s notice of lodging that did not include any portion 

of the intake documents. Because the service copy omitted the intake 

documents, counsel assumed the court copy (which counsel copied for use as 

an exhibit to Magallanes’s writ petition) would not include an intake 

document. Counsel also relied on the District’s ex parte application, which 

stated that the intake documents would be filed under seal. 

3 In the same order, we denied Magallanes’s petition to the extent it 

challenged the trial court’s denial of her request to disqualify District 

counsel.
8

written ruling the court reaffirmed its prior order deeming the attorneyclient privilege waived. The court found that Magallanes’s counsel’s 

repeated production of privileged information, questioning of District 

witnesses based on the information, and “counsel’s slow action towards 

objecting to use of the information . . . infer[red] [sic] the client’s intent 

to waive” the privilege. The court also reasoned that courts have 

imputed knowledge and mistakes of attorneys to their clients in other 

circumstances. 

DISCUSSION

1. Governing Law and Standard of Review

The attorney-client privilege, as codified in Evidence Code section

950 et seq., protects confidential communications between a client and 

her attorney made in the course of an attorney-client relationship.4 

(Kerner v. Superior Court (2012) 206 Cal.App.4th 84, 116; Costco

Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 732 (Costco).) 

The privilege is absolute; courts have no power to expand or limit the

privilege by creating exceptions. (McDermott Will & Emery LLP v.

Superior Court (2017) 10 Cal.App.5th 1083, 1100 (McDermott).)

Section 954 sets forth the attorney-client privilege. That section 

states in part that “[s]ubject to Section 912,” the client may “refuse to 

disclose, and to prevent another from disclosing, a confidential 

communication between client and lawyer.” 

4 Subsequent references to statutes are to the Evidence Code. 
9

Section 912 in turn provides that “the 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 . . . consented to disclosure made by anyone. 

Consent to disclosure is manifested by any statement or other 

conduct . . . indicating consent to the disclosure, including failure to 

claim the privilege in any proceeding in which the holder has legal 

standing and the opportunity to claim the privilege.” (§ 912, subd. (a).)

The party claiming the privilege has the burden of establishing a

prima facie showing of a confidential attorney-client communication. 

(McDermott, supra, 10 Cal.App.5th at p. 1101.) Once that prima facie

showing has been made, “‘it is presumed the communication is

privileged and the burden shifts to the opponent to establish waiver, an

exception, or that the privilege does not for some other reason apply.’” 

(Ibid., quoting DP Pham, LLC v. Cheadle (2016) 246 Cal.App.4th 653,

659–600 (DP Pham).) 

The determination whether a communication is privileged, and 

whether there has been a waiver of any such privilege, requires 

consideration of fact and law. (McKesson HBOC, Inc. v. Superior Court 

(2004) 115 Cal.App.4th 1229, 1236 (McKesson).) When there is 

conflicting evidence on whether the client intended to waive the 

attorney-client privilege, we review the court’s ruling for substantial 

evidence. (McDermott, supra, 10 Cal.App.5th at p. 1102.) However, 

when the historical facts are undisputed, the “ inquiry ‘requires a 

critical consideration, in a factual context, of legal principles and their 

underlying values.’ [Citation.] Therefore, the question is 
10

predominately legal, and we independently review the trial court’s 

decision.” (McKesson, supra, at p. 1236; accord, Regents of University of 

California v. Superior Court (2008) 165 Cal.App.4th 672, 678 (Regents).)

2. Analysis

Here, it is undisputed that the statement at issue, provided by

Magallanes or her mother that the child was pushed by another

student, appeared in the intake documents, and that such statement

constitutes a privileged communication under section 954. The parties

dispute only whether that privilege was waived by (1) Magallanes’s

counsel’s disclosures of the statement to expert witnesses and opposing

counsel; (2) the designation of Magallanes’s retained experts as

witnesses at trial; and (3) her counsel’s failure to protect the statement

upon claiming the privilege. As we shall discuss, we find no waiver of

the attorney-client privilege.

Section 912 clearly provides that it is the holder of the privilege, in

this case Magallanes through her mother and guardian ad litem (§ 953),

who may waive the privilege. Because section 912 clearly provides that

it is only the client who may waive the privilege, this court previously

held in State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644,

652, 654 (State Comp.), that “‘waiver’ does not include accidental,

inadvertent disclosure of privileged information by [client’s] attorney.” 

(Id. at p. 654.) 

In State Comp., outside counsel for the plaintiff (State Fund)

inadvertently sent defense counsel hundreds of pages of civil litigation
11

claims forms conspicuously marked as attorney-client communications. 

(70 Cal.App.4th at pp. 647–648.) The inadvertent disclosure of such

privileged communications was made in a large production of

documents. (Id. at p. 647.) When counsel for State Fund discovered the

error six months later, he contacted defense counsel and “demanded the

return of the . . . documents.” (Id. at p. 649.) When defense counsel

refused, counsel for State Fund gave ex parte notice that he would seek

an order compelling the return of the documents. (Ibid.) Counsel for

State Fund then filed an ex parte application for, inter alia, the

destruction or return of the documents, and sanctions against the

defendant and counsel for reviewing and using material clearly marked

as privileged. (Id. at p. 649.) The court agreed, and found State Fund

had not waived the privilege by the inadvertent disclosure; the court

also found defense counsel violated its ethical obligations to refrain

from using and return the documents to State Fund. (Id. at p. 651.)

On appeal from the trial court’s order, we held that the accidental,

inadvertent disclosure of the privileged information by State Fund’s

counsel did not result in a waiver by State Fund. (70 Cal.App.4th at

p. 653.) In reaching that conclusion, we looked to the words and

conduct of State Fund, the holder of the privilege, to determine whether

a waiver had occurred. (Id. at p. 652.) We found no affirmative conduct

on behalf of State Fund to consent to disclosure, and found significant

testimony from State Fund’s counsel that disclosure of the material was

unintentional and had been made despite the procedures it employed to

prevent disclosure of privileged materials. (Id. at p. 653.) We also
12

found “the promptness with which counsel for State Fund moved to

secure return of the documents indicated that there was no intent on

the part of State Fund to waive the privilege.” (Ibid.; accord, Ardon v.

City of Los Angeles (2016) 62 Cal.4th 1176, 1188 [“the disclosure

contemplated in . . . section 912 involves some measure of choice and

deliberation on the part of the privilege holder”].) 

The circumstances in this case are materially similar to those in

State Comp. Magallanes’s counsel, through his legal secretary,

inadvertently disclosed documents conspicuously marked as attorneyclient communications in a large production of documents. The

privileged communications were included in one or more categories of

documents wholly unrelated to materials appearing in a litigation file. 

Though individual review of the Dropbox links containing these

documents might have prevented disclosure, it is clear that neither

Magallanes nor her counsel intended to produce the intake documents

to expert witnesses or opposing counsel. In such context, the

inadvertent disclosure “merely demonstrates that the poor paralegal or

junior associate who was lumbered with the tedious job of going through

voluminous files and records in preparation for a document production

may have missed something.” (O’Mary v. Mitsubishi Electronics

America, Inc. (1997) 59 Cal.App.4th 563, 577.)

In the alternative, the District contends that Magallanes waived

her claim of privilege because she failed to take corrective action,

including the failure to seek a protective order or sealing order for the 

privileged documents, the failure to claw back the documents, and the 

questioning of Brault on the privileged information. 
13

Though we agree that the holder of a privilege may waive it by 

engaging in “‘“conduct inconsistent with claiming the protection”’” 

(Regents, supra, 165 Cal.App.4th at p. 679), absent from the record in 

this case is any evidence that Magallanes engaged in any conduct 

inconsistent with claiming the privilege. The only failures identified by 

the District are those of Magallanes’s counsel. It is not even clear 

Magallanes knew of the inadvertent disclosures, the inadvertent public 

filings, or the questioning of District witnesses. (Compare Calvert v.

State Bar (1991) 54 Cal.3d 765, 780 [finding implied waiver after client

failed to claim privilege at a hearing in which she was present and

consulted with her attorney] with DP Pham, supra, 246 Cal.App.4th at

p. 668 [no evidence established client had waived or authorized

bookkeeper to waive the privilege].) Because Magallanes’s counsel 

continuously sought, albeit imperfectly, to protect the attorney-client 

privilege, we shall not impute an attorney’s negligent conduct to the 

client. (See Regents, supra, at p. 683 [the law does not require 

“‘“strenuous or Herculean efforts”’” to preserve a claim of privilege].)

The District also contends that “any privilege over information 

given to experts is ‘lost upon designation of the expert as a witness 

because the decision to use the expert as a witness manifests the 

client’s consent to disclosure of the information.’” (Quoting Shadow 

Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067, 1079 

(Shadow).)

It is true that disclosure of material protected by the attorneyclient privilege to an expert who is later designated as a trial witness 
14

may constitute an implied waiver by the client. (Shadow, supra, 24 

Cal.App.4th at p. 1079.) But such a waiver applies only to confidential 

information that is relevant and likely to be used by the expert at trial. 

(See National Steel Products Co. v. Superior Court (1985) 164 

Cal.App.3d 476, 485 [upholding waiver of attorney-client privilege 

because the information revealed was on the same “‘subject matter 

about which’” the expert was a prospective witness]; Sanders v. 

Superior Court (1973) 34 Cal.App.3d 270, 276, 279 (Sanders) [“the 

information and opinion of an expert respecting the subject matter 

about which he is a prospective witness” constitutes relevant evidence 

subject to discovery].) 

Here, Magallanes’s counsel inadvertently disclosed over 20 pages 

of documents clearly marked as confidential and work product, 

including attorney retainer agreements. It is undisputed that 

Magallanes’s counsel did not send any of those documents for the 

purpose of assisting an expert’s analysis of a disputed issue in the case. 

Further, the subject matter of the privileged information here (a single 

sentence in a summary of an intake interview in which Magallanes or 

her mother said that Magallanes was pushed by another student) is not 

relevant to the subjects about which the three experts were retained. 

(See Sanders, supra, 34 Cal.App.3d at p. 277 [“‘When it becomes 

reasonably certain an expert will give his professional opinion as a 

witness on a material matter in dispute, then his opinion has become a 

factor in the cause’”].) The retainer agreements for the retained experts 

who inadvertently received the intake documents (David Lechuga, Paul 

Broadus, and Sharon Grandinette) show that Grandinette is an 
15

educational consultant who would opine on Magallanes’s educational 

functioning; Lechuga is the director of the Neurobehavioral Clinic and 

Counseling Center with accreditations for clinical and rehabilitation 

psychology, and neuropsychology;5 and Broadus is an expert on 

disability management services and the ability to work.

Given the subjects for which these experts were retained, the 

District has failed to meet its burden to establish that in forming an 

opinion, any of these experts used, or were likely to use, the information 

that Magallanes was purportedly pushed by another student. (See 

McDermott, supra, 10 Cal.App.5th at p. 1101 [once prima facie of 

privilege has been made, the burden shifts to opponent to establish 

waiver].) Thus, there is simply no basis in the record to uphold a 

determination that Magallanes impliedly waived the attorney-client 

privilege over confidential information that her counsel inadvertently 

disclosed to three of her retained experts. 

Finally, we disagree with the trial court’s ruling that the 

knowledge or negligence of an attorney can be imputed to the client for 

purposes of determining whether the client waived the attorney-client 

privilege.6 The privilege “‘has been a hallmark of Anglo-American 

5 The District has not identified any other portion of the record with 

respect to Lechuga’s area of expertise.

6 The authority on which the court relied is inapposite to this case. (See 

Harustak v. Wilkins (2000) 84 Cal.App.4th 208, 219 [imputing attorney 

knowledge with regard to statute of limitations in trustee claims proceeding]; 

Stalberg v. Western Title Ins. Co. (1991) 230 Cal.App.3d 1223, 1231 [same but 

in slander of title-breach of fiduciary duty claim]; In re Ivey (2000) 85 

Cal.App.4th 793, 804–805 [imputing attorney knowledge of fees and costs to 
16

jurisprudence for almost 400 years.’” (Costco, supra, 47 Cal.4th at 

p. 732.) It “is a legislative enactment, which courts have no power to 

expand or limit by creating exceptions” (McDermott, supra, 10 

Cal.App.5th at p. 1100), including a purported exception imputing the 

knowledge or negligence of an attorney to the client so as to fashion an 

implicit waiver by the client. 

Based on the foregoing, we conclude that Magallanes did not 

waive her right to claim the attorney-client privilege.

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an alleged contemnor]; Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 

231 [imputing attorney’s wrongful withholding of material to client with 

respect to discovery sanctions].)
17

DISPOSITION

The alternative writ is discharged. Let a peremptory writ of 

mandate issue compelling the respondent superior court to vacate its 

order of May 21, 2021 to the extent it found Magallanes waived the 

attorney-client privilege over the intake documents, and instead enter 

an order denying the District’s application to deem the privilege waived. 

This court’s June 9, 2021 order staying all further proceedings in this 

matter is discharged. Petitioner is awarded costs. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

MANELLA, P. J.

COLLINS, J.