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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

[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, c ausing 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 pa ge 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, de lete “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

. ”

The re 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 or dered 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 Petiti oner.2

No appearance for Respondent.

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

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

Part y 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 privileg e

waived as to statements appearing in attorney intake documents that

w ere 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 att orney

- 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 attendi ng school in 2017,

Magallanes (t hen 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 Maga llanes 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 d iscovery. 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 fil e .” 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 protec ted4

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 Dis trict counsel that the

documents were privileged , inadvertently disclosed, and were to be

immediately destroyed. Both parties stipulated that they would refrain

from transmit ting 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 c ompeting ex parte

applications, the District seeking an order deeming the claim of

privilege waived , and Magallanes seeking an order disqualifying

District counsel for improperly us ing 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 n otice of l odging

.

In her appl ication, Magallanes argued that District counsel was

dutybound to refrain from reviewing and using privilege d material that

had been inadvertently disclosed

. In support, Magallanes’s counsel5

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

Agreem ent” 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 hearin g 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 , J ohn 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 intake6

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 a fter 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

Distric t 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 p reserve the

confidentiality of information.

In its preliminary response, the District argued Magallanes had

waived her claim of privilege by publicly fil ing the deposition transcript

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

do cuments 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 app earing 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 th e 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 no t 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 Magalla nes’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 us e 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 reaffirm ed its prior order deeming the attorney

client 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[ r ed] [ 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 disc losure 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.” (§ 9 12, 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

, supr a , 10 Cal.App.5th at p. 1102.) However,

w hen 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 is10

predominat ely 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, i t 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 document s

, 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 ( Sta te 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 litigation11

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 larg e 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, w e 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 ha d 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 also12

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

. . . secti on 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 attorney

client 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 conte xt, 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 pri vileged information.13

Though we agree that t he 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] .) B ecause Magallanes’s counsel

continuously sought, albeit imperfectly, to protect the attorney

- client

privilege, w e shall not impute an attorney’s negligent conduct t o 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.’” (Quoti ng Shadow

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

( Shadow )

. )

It is true that disclosure of material protected by the attorney

client privilege to an expert who is later designated as a trial witness14

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 o n the same “‘subject matter

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

Superior Court (1973) 34 Cal.A p p.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 o f a disputed issue in the case

.

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

sentence in a summary of an intake intervi ew 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 exp ert 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, Pa ul

Broadus, and Sharon Grandinette) show that Grandinette is an15

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 shi fts 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 o f limitations in trustee claims proceeding];

Stalberg v. W

estern 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 to16

jurisprudence for almost 400 years.’” ( Costco

, supra , 47 Cal.4th at

p. 732.) It “is a legislative en actment, 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 wai ver by the client.

Based on the foregoing

, we conclude that Magallanes did not

waive her right to claim the attorney

- client privilege

.

//

//

//

//

//

//

//

//

//

//

//

//

//

an alleged contemnor]; Sauer v. Superior Court (1987) 195 Cal.A pp.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 document s, and inste ad 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.

C OLLINS , J.