Filed 4/13/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

COUNTY OF LOS ANGELES BOARD 

OF SUPERVISORS et al.,

Petitioners,

v.

THE SUPERIOR COURT OF 

LOS ANGELES COUNTY,

Respondent;

ACLU OF SOUTHERN CALIFORNIA 

et al.,

Real Parties in Interest.

 No. B257230

 (Los Angeles County

 Super. Ct. No. BS145753)

ORIGINAL PROCEEDINGS in mandate. Luis A. Lavin, Judge. Petition granted.

John F. Krattli and Mark J. Saladino, County Counsel, Roger H. Granbo, Assistant 

County Counsel, Jonathan McCaverty, Deputy County Counsel; Greines, Martin, Stein & 

Richland, Timothy T. Coates and Barbara W. Ravitz for Petitioners.

Horvitz & Levy, Lisa Perrochet, Steven S. Fleischman and Jean M. Doherty for 

Association of Southern California Defense Counsel as Amicus Curiae on behalf of 

Petitioners.

No appearance for Respondent.
2

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

Eric Preven.

Davis Wright Tremaine, Jennifer L. Brockett and Nicolas A. Jampol for Real 

Party in Interest ACLU of Southern California.

________________________________

The question we resolve in this writ proceeding is whether billing invoices sent by 

an attorney to a client must be disclosed pursuant to the California Public Records Act 

(CPRA), or whether they are protected by the attorney-client privilege. Both the CPRA 

and the attorney-client privilege advance public policies of the highest order: the CPRA 

fosters transparency in government, and the attorney-client privilege enhances the 

effectiveness of our legal system. In the instant matter, these two interests collide. We 

conclude that, because the CPRA expressly exempts attorney-client privileged 

communications from the CPRA’s reach, the tension must here be resolved in favor of 

the privilege. Because the invoices are confidential communications within the meaning 

of Evidence Code section 952, they are exempt from disclosure under Government Code 

section 6254, subdivision (k). Accordingly, we grant the writ petition.

FACTUAL AND PROCEDURAL BACKGROUND

In the wake of several publicized investigations into allegations that the 

Los Angeles County Sheriff’s Department used excessive force on inmates housed in the 

Los Angeles County jail system, real parties in interest the ACLU of Southern California

and Eric Preven (collectively, the ACLU) submitted a CPRA request to petitioners the 

Los Angeles County Board of Supervisors and the Office of the Los Angeles County 

Counsel (collectively, the County) for invoices specifying the amounts that the County of 

Los Angeles had been billed by any law firm in connection with nine different lawsuits 

“brought by inmates involving alleged jail violence.” It also sought disclosure of service 

agreements between the County and two consultants and an “implementation monitor.” 

The ACLU sought the documents to enable it to “ ‘determine what work was being done 

on the lawsuits, the scope of that work, the quality of the representation, and the 

efficiency of the work.’ ”
3

The County agreed to produce copies of the requested documents related to three 

such lawsuits, which were no longer pending, with attorney-client privileged and work

product information redacted. It declined to provide billing statements for the remaining 

six lawsuits, which were still pending. It averred that the “detailed description, timing, 

and amount of attorney work performed, which communicates to the client and discloses 

attorney strategy, tactics, thought processes and analysis” were privileged and therefore 

exempt from disclosure under Government Code section 6254, subdivision (k), as well as 

under the CPRA’s “catchall” exemption, Government Code section 6255, subdivision (a). 

It contended the service agreements were also protected by, inter alia, Business and 

Professions Code sections 6149 (which deems written fee contracts confidential 

communications) and 6148.

The ACLU filed a petition for writ of mandate in the superior court, seeking to 

compel the County to “comply with the [CPRA]” and disclose the requested records for 

all nine lawsuits. The ACLU averred: “Current and former jail inmates have brought 

numerous lawsuits against the County and others for alleged excessive force. The 

County has retained a number of law firms to defend against these suits. It is believed 

that the selected law firms may have engaged in ‘scorched earth’ litigation tactics and 

dragged out cases even when a settlement was in the best interest of the County or when 

a settlement was likely. Given the issues raised by the allegations in these complaints 

and the use of taxpayer dollars to pay for the alleged use of scorched earth litigation 

tactics, the public has a right and interest in ensuring the transparent and efficient use of 

taxpayer money.” The ACLU argued that the billing records were not generally 

protected by the attorney-client or work product privileges, or by the Business and 

Professions Code sections, and did not fall within any of the statutory exceptions to the 

CPRA. The ACLU acknowledged that “to the extent that a particular billing description 

reflects an attorney’s legal opinion and advice to the County, or reveals the attorney’s 

mental impressions or theories of the case, such information may properly be redacted 

under the attorney-client privilege or work product doctrine.” However, the ACLU 
4

expected that such entries would be “few in number, and the remainder of an attorney’s 

billing records is not protected from disclosure at all.”

The County responded by reiterating that the billing records were protected by the 

attorney-client privilege; that the Business and Professions Code sections demonstrated 

information about financial arrangements and services was privileged and confidential;

and that the billing records were protected from disclosure under the CPRA’s catchall 

exemption. 

In a thoughtful decision, the superior court granted the petition for writ of mandate 

insofar as it pertained to the billing records.1 The court held that the County had failed to 

show the billing records were attorney-client privileged communications exempt from 

disclosure. It reasoned that Evidence Code section 952, which defines attorney-client 

privileged communications, “does not automatically apply to any communication 

between an attorney and his or her client.” The party claiming the privilege must assert 

specific facts demonstrating how the challenged document qualifies as a privileged 

communication. In the court’s view, the County had “not alleged any specific fact 

demonstrating why the billing statements, with proper redactions concealing actual 

attorney-client privileged communications or attorney work product, would qualify as 

privileged communications exempt from disclosure under Evidence Code section 

952 . . . .” Further, the County had failed to produce any “actual evidence concerning the 

contents of the billing statements, including whether they were produced for a litigationrelated purpose.”

The court also rejected the County’s argument that the billing statements should be 

considered confidential in light of Business and Professions Code sections 6148 and 

6149. The court observed that Business and Professions Code section 6148, subdivisions 

 

1 By the time of the hearing below, the requests for two of the service agreements 

were no longer at issue. The superior court denied the ACLU’s petition insofar as it 

sought the agreement between the County and the implementation monitor, and denied 

the ACLU’s motion for reconsideration. Those rulings are not before us.
5

(a) and (b), describes what types of information should be included in fee agreements and 

billing statements, respectively. However, Business and Professions Code section 6149 

deemed only fee agreements to be confidential communications for purposes of the 

attorney-client privilege. Applying the standard canons of statutory construction, the 

court concluded the Legislature did not intend the information in billing statements to be 

deemed confidential.

Finally, the court found the billing statements were not exempt from disclosure 

under the CPRA’s “catchall” exemption, because the County had failed to demonstrate a 

clear overbalance in favor of nondisclosure justifying withholding the requested records.

Accordingly, the court ordered the County to release “all invoices issued by the 

County’s outside attorneys in the nine cases specified” in the CPRA request. However, 

“[t]o the extent any documents that are responsive to the Requests reflect an attorney’s 

legal opinion or advice, or reveal an attorney’s mental impressions or theories of the case, 

such limited information may be redacted.”

The County then filed the instant petition for writ of mandate, challenging the trial 

court’s ruling. The Association of Southern California Defense Counsel, as amicus 

curiae, filed a letter in support of issuance of the writ. We issued an order to show cause. 

DISCUSSION

1. Standard of review

A superior court’s ruling under the CPRA, either directing disclosure by a public 

official or supporting the decision of the public official refusing disclosure, is 

“immediately reviewable by petition to the appellate court for the issuance of an 

extraordinary writ.” (Gov. Code, § 6259, subd. (c); MinCal Consumer Law Group v. 

Carlsbad Police Dept. (2013) 214 Cal.App.4th 259, 263-264; Consolidated Irrigation 

Dist. v. Superior Court (2012) 205 Cal.App.4th 697, 708.) We independently review a 

trial court’s interpretation of the CPRA and its application of the CPRA to undisputed 

facts, but uphold its express or implied factual findings if based on substantial evidence. 

(County of Los Angeles v. Superior Court (2012) 211 Cal.App.4th 57, 62 (Anderson-
6

Barker); Bakersfield City School Dist. v. Superior Court (2004) 118 Cal.App.4th 1041, 

1045; Consolidated Irrigation Dist. v. Superior Court, at pp. 708-709.)

2. The statutes

a. The CPRA

“The California Legislature in 1968, recognizing that ‘access to information 

concerning the conduct of the people’s business is a fundamental and necessary right of 

every person in this state’ (Gov. Code, § 6250), enacted the California Public Records 

Act, which grants access to public records held by state and local agencies (Gov. Code, 

§ 6253, subd. (a)).” (Long Beach Police Officers Assn. v. City of Long Beach (2014) 

59 Cal.4th 59, 66-67 (Long Beach Police).) “As the result of an initiative adopted by the 

voters in 2004, this principle is now enshrined in the state Constitution: ‘The people have 

the right of access to information concerning the conduct of the people’s business, and 

therefore, . . . the writings of public officials and agencies shall be open to public 

scrutiny.’ (Cal. Const., art. I, § 3, subd. (b)(1).)” (International Federation of 

Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 

42 Cal.4th 319, 329 (International Federation).) 

The CPRA’s purpose is to increase freedom of information by providing public 

access to information in the possession of public agencies. (Filarsky v. Superior Court 

(2002) 28 Cal.4th 419, 425; Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 370; 

Anderson-Barker, supra, 211 Cal.App.4th at p. 63; Consolidated Irrigation Dist. v.

Superior Court, supra, 205 Cal.App.4th at p. 708.) To implement this policy, 

Government Code section 6253, subdivision (a) provides all persons with the right to 

inspect any public record maintained by state or local agencies, subject to various 

enumerated exemptions. (Long Beach Police, supra, 59 Cal.4th at p. 67; AndersonBarker, at p. 63; Consolidated Irrigation Dist., at p. 708.) The act “broadly defines

‘ “[p]ublic records” ’ as including ‘any writing containing information relating to the 

conduct of the public’s business prepared, owned, used, or retained by any state or local 

agency . . . .’ (Gov. Code, § 6252, subd. (e).)” (Long Beach Police, at p. 67; 

Consolidated Irrigation Dist., at p. 708.) Here, it is undisputed that the County is such a 
7

local agency, and that the billing records at issue are public records within the meaning of

the CPRA.

The CPRA embodies a strong policy in favor of disclosure. (Bakersfield City 

School Dist. v. Superior Court, supra, 118 Cal.App.4th at p. 1045.) Because the CPRA 

furthers the people’s right of access, it must be construed broadly. (Cal. Const., art. I, 

§ 3, subd. (b)(2); Anderson-Barker, supra, 211 Cal.App.4th at p. 63.)

The people’s right of access is not absolute, however. (Humane Society of U.S. v. 

Superior Court (2013) 214 Cal.App.4th 1233, 1254.) The CPRA contains over two 

dozen express exemptions. (Gov. Code, § 6254; International Federation, supra, 

42 Cal.4th at p. 329; Humane Society of U.S., at pp. 1254-1255.) “The 2004 initiative 

that amended the state Constitution to include a right of access to public records 

explicitly preserves such statutory exceptions. (Cal. Const., art I, § 3, subd. (b)(5).)” 

(International Federation, at p. 329, fn. 2.) The exemptions are to be construed 

narrowly. (Humane Society of U.S., at p. 1254; Anderson-Barker, supra,

211 Cal.App.4th at p. 60.) 

Relevant here is subdivision (k) of Government Code section 6254, which

provides an exemption for “[r]ecords, the disclosure of which is exempted or prohibited 

pursuant to federal or state law, including, but not limited to, provisions of the Evidence 

Code relating to privilege.” Pursuant to this subdivision, documents protected by the 

attorney-client privilege are not subject to CPRA disclosure. (Anderson-Barker, supra, 

211 Cal.App.4th at p. 64; Roberts v. City of Palmdale, supra, 5 Cal.4th at p. 370 [“By its 

reference to the privileges contained in the Evidence Code . . . the Public Records Act has 

made the attorney-client privilege applicable to public records”]; Sanchez v. County of 

San Bernardino (2009) 176 Cal.App.4th 516, 527 [“The Public Records Act does not 

require the disclosure of a document that is subject to the attorney-client privilege”].) 

Additionally, Government Code section 6255, subdivision (a), sometimes referred 

to as the “public interest” or “catchall” exemption, allows a public agency to “ ‘justify 

withholding any record by demonstrating that . . . on the facts of the particular case the 

public interest served by not disclosing the record clearly outweighs the public interest 
8

served by disclosure of the record.’ ” (Long Beach Police, supra, 59 Cal.4th at p. 67; 

International Federation, supra, 42 Cal.4th at p. 329; Bakersfield City School Dist. v. 

Superior Court, supra,118 Cal.App.4th at p. 1045.) This provision contemplates a caseby-case balancing process, and the proponent of nondisclosure must demonstrate a “clear 

overbalance on the side of confidentiality.” (Michaelis, Montanari & Johnson v. 

Superior Court (2006) 38 Cal.4th 1065, 1071.) 

A public entity opposing disclosure bears the burden to show the requested 

information falls within the parameters of a specific exemption. (Long Beach Police, 

supra, 59 Cal.4th at p. 67; International Federation, supra, 42 Cal.4th at p. 329; 

Anderson-Barker, supra, 211 Cal.App.4th at p. 63; Gov. Code, § 6255, subd. (a) [“The 

agency shall justify withholding any record by demonstrating that the record in question 

is exempt under express provisions of this chapter”].) “Unless one of the exceptions 

stated in the Act applies, the public is entitled to access . . . .” (International Federation, 

at p. 329.) 

b. The attorney-client privilege

The attorney-client privilege is embodied in Evidence Code section 950 et seq. 

and protects confidential communications between a client and his or her attorney made 

in the course of an attorney-client relationship. (Costco Wholesale Corp. v. Superior 

Court (2009) 47 Cal.4th 725, 732 (Costco); Roberts v. City of Palmdale, supra, 5 Cal.4th 

at p. 371.) “ ‘[T]he fundamental purpose of the attorney-client privilege is the 

preservation of the confidential relationship between attorney and client [citation], and 

the primary harm in the discovery of privileged material is the disruption of that 

relationship . . . .’ [Citation.]” (Fireman’s Fund Ins. Co. v. Superior Court (2011) 

196 Cal.App.4th 1263, 1272.) Evidence Code section 954 “confers a privilege on the 

client ‘to refuse to disclose, and to prevent another from disclosing, a confidential

communication between client and lawyer . . . .’ ” (Costco, at p. 732.) “[T]he public 

policy fostered by the privilege seeks to insure ‘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.]” 
9

(Mitchell v. Superior Court (1984) 37 Cal.3d 591, 599; Roberts v. City of Palmdale, at 

p. 380.) “ ‘Although exercise of the privilege may occasionally result in the suppression 

of relevant evidence, the Legislature of this state has determined that these concerns are 

outweighed by the importance of preserving confidentiality in the attorney-client 

relationship. As [our Supreme Court] has stated: “The privilege is given on grounds of 

public policy in the belief that the benefits derived therefrom justify the risk that unjust 

decisions may sometimes result from the suppression of relevant evidence.” 

[Citations.]’ ” (Costco, at p. 732.) 

Evidence Code section 952 broadly defines “confidential communication.”

(Fireman’s Fund Ins. Co. v. Superior Court, supra, 196 Cal.App.4th at p. 1273.) Section 

952 provides that a confidential communication means “information transmitted between 

a client and his or her lawyer in the course of that relationship and in confidence,” by 

confidential means, and “includes a legal opinion formed and the advice given by the 

lawyer in the course of that relationship.” “The term ‘confidential communication’ is 

broadly construed, and communications between a lawyer and his [or her] client are 

presumed confidential, with the burden on the party seeking disclosure to show 

otherwise.” (Gordon v. Superior Court (1997) 55 Cal.App.4th 1546, 1557.) Discovery 

of a privileged communication is barred irrespective of whether it includes unprivileged 

material. (Costco, supra, 47 Cal.4th at p. 734.)

Where no enumerated exception applies (see Evid. Code, §§ 956-962), “ ‘[t]he 

privilege is absolute and disclosure may not be ordered, without regard to relevance, 

necessity or any particular circumstances peculiar to the case.’ [Citation.]” (Costco, 

supra, 47 Cal.4th at p. 732.) 

3. Are billing statements covered by the attorney-client privilege under California 

law?

We begin our analysis with the dispositive question of whether billing statements 

qualify as privileged communications under Evidence Code section 952. While several 

cases have touched on the fringes of this question, none have squarely decided it.
10

In Anderson-Barker, a colleague of attorneys who represented the plaintiffs in a 

pending civil rights suit brought against the County made a CPRA request for billing 

records of law firms that represented the County in the lawsuit. The CPRA request 

sought the firms’ invoices, attorney time records, and the County’s payment records. 

(Anderson-Barker, supra, 211 Cal.App.4th at pp. 60-61.) The County asserted that the 

documents were attorney-client privileged and work product communications not subject 

to disclosure, and were also exempt under the CPRA’s “pending litigation” exemption.

(Gov. Code, § 6254, subd. (b);2 Anderson-Barker, at p. 61.) The trial court ruled the 

documents were not attorney-client privileged communications. It ordered the records 

redacted to protect portions containing attorney work product, and ordered disclosure of 

the information that was “ ‘not work product––the hours worked, the identity of the 

person performing the work, and the amount charged.’ ” (Anderson-Barker, at p. 61.) 

The trial court concluded the CPRA’s “pending litigation” exemption did not apply, 

because it pertained only to records specifically prepared for use in litigation. (Id. at 

p. 62.) The County challenged the latter aspect of the trial court’s ruling via a writ 

petition, but did “not challenge the trial court’s ruling with respect to the attorney-client 

and work product privileges.” (Ibid.) The appellate court upheld the trial court’s ruling 

that, given the narrow construction of CPRA exemptions, the pending litigation

exemption did not apply because although the billing records related to the litigation, they 

were not specifically prepared for use in the litigation. (Id. at pp. 64, 67.) Here, the 

pending litigation exemption is not at issue; the County does not aver that the records fall 

within that exemption. Thus, because cases are not authority for propositions not 

considered (McWilliams v. City of Long Beach (2013) 56 Cal.4th 613, 626), AndersonBarker does not answer the question before us.

 

2 The pending litigation exemption excepts from disclosure records “ ‘pertaining to 

pending litigation to which the public agency is a party . . . until the pending litigation . . . 

has been finally adjudicated or otherwise settled.’ ” (Anderson-Barker, supra, 211 

Cal.App.4th at p. 60; Gov. Code, § 6254, subd. (b).)
11

In Smith v. Laguna Sur Villas Community Assn. (2000) 79 Cal.App.4th 639, two 

condominium associations retained a law firm to bring a construction defect action 

against the developer. A dissident group of residents demanded to review the law firm’s 

work product and legal bills. (Id. at p. 642.) The association objected that the documents 

were protected by the attorney-client and work product privileges. The appellate court 

affirmed the trial court’s holding that the association was the holder of the attorney-client 

privilege and individual homeowners could not demand the production of privileged 

documents, except as allowed by the association. (Id. at p. 643.) Smith assumed without 

discussion that the legal bills in question were protected by the privilege. Again, because 

the case did not directly consider the issue, it does not answer the question before us.

The primary issue in Concepcion v. Amscan Holdings, Inc. (2014) 

223 Cal.App.4th 1309, was whether a trial court could, when awarding attorney fees, rely 

on records not provided to the defendant. There, in several coordinated class actions,

plaintiffs alleged that Party City improperly recorded zip code information during credit 

card transactions. After the trial court approved a settlement of the cases, the plaintiffs 

sought attorney fees. (Id. at pp. 1312-1314.) Party City opposed the motion on the 

ground the fees claimed were excessive and duplicative, among other things. (Id. at 

p. 1316.) The trial court requested detailed time records, which most of the class 

counsels had offered to provide, for in camera review. After considering the time records 

in camera, the court awarded the requested fees. On appeal, our colleagues in Division 

Seven agreed with Party City that it was improper for the court to rely upon billing 

information that Party City had no opportunity to challenge. (Id. at p. 1312.) In arguing 

against that conclusion, the plaintiffs had “suggest[ed] class counsel’s billing records 

contain[ed] privileged information, thus justifying in camera review.” (Id. at p. 1326.) 

Concepcion rejected this argument, explaining, “we seriously doubt that all—or even

most—of the information on each of the billing records proffered to the court was 

privileged. Certainly the trial court made no such finding. Nor is there any explanation 

why the supplemental information requested by the court could not have been provided 

by filing—and serving on Party City—redacted copies of the bills deleting any privileged 
12

information.” (Id. at pp. 1326-1327.) While Concepcion was skeptical of the notion that 

the billing records were privileged on the wholly different facts of that case, the court 

offered no analysis of the basis for its view.3

Accordingly, we turn to analysis of Evidence Code section 952.

a. A communication between attorney and client, arising in the course of 

representation for which the client sought legal advice, need not include a legal opinion 

or advice to qualify as a privileged communication. 

The trial court’s written ruling suggests it believed that to establish the preliminary 

facts necessary to support a claim of attorney-client privilege, a party must do more than 

demonstrate that a document is a confidential communication between attorney and 

client, made in the course of the representation. It reasoned: “Evidence Code section 

 

3 The ACLU points out that the Ninth Circuit, and courts in other jurisdictions, have 

held the attorney-client privilege does not categorically protect billing records. (See, e.g., 

Clarke v. American Commerce Nat. Bank (9th Cir. 1992) 974 F.2d 127, 129-130 [under 

the federal common law, the identity of the client, the amount of the fee, the 

identification of payment by case file name, and the general purpose of the work 

performed are usually not protected from disclosure by the attorney-client privilege; 

correspondence, bills, ledgers, statements, and time records which also reveal the motive 

of the client in seeking representation, litigation strategy, or the specific nature of the 

services provided, such as researching particular areas of law, fall within the privilege]; 

DiBella v. Hopkins (2d Cir. 2005) 403 F.3d 102, 120 [“In New York, attorney time 

records and billing statements are not privileged when they do not contain detailed 

accounts of the legal services rendered”]; Beavers v. Hobbs (S.D. Iowa 1997) 176 F.R.D. 

562, 565 [generally, billing records that do not reveal confidential information are subject 

to discovery and not protected by the attorney-client privilege]; Tipton v. Barton 

(Mo.App. 1988) 747 S.W.2d 325, 330-332.) Other non-California authorities hold 

differently. (See State ex rel. Dawson v. Bloom-Carroll Local School Dist. (Ohio 2011) 

131 Ohio St. 3d 10 [959 N.E.2d 524, 529] [“ ‘While a simple invoice ordinarily is not 

privileged, itemized legal bills necessarily reveal confidential information and thus fall 

within the [attorney-client] privilege’ ”]; Progressive American Ins. Co. v. Lanier 

(Fla.App., 1st Dist. 2001) 800 So.2d 689, 690 [billing statements were absolutely 

privileged as attorney-client communications].) Because in California the attorney-client 

privilege is a creature of statute and governed by California law (see Wells Fargo Bank v. 

Superior Court (2000) 22 Cal.4th 201, 206-209), these out-of-state authorities are of 

limited utility. 
13

952 does not automatically apply to any communication between an attorney and his or 

her client. . . . Rather, the party claiming the privilege must assert specific facts, usually 

via declarations, demonstrating how the challenged document qualifies as a privileged 

communication.” The ACLU takes this approach a step further, and avers that it is a 

“basic principle” that “communications that do not contain legal advice or opinion are not 

privileged.” We disagree.

As noted, Evidence Code section 952 defines “confidential communication” for 

purposes of the attorney-client privilege. It states: “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.” 

The parties disagree about the meaning of the final clause, “and includes a legal 

opinion formed and the advice given by the lawyer in the course of that relationship.” 

The ACLU reads this phrase to mean that only communications containing legal advice 

or opinion qualify as confidential communications. The County, on the other hand, 

contends it means that a confidential communication includes, but is not limited to, a 

communication incorporating the lawyer’s legal opinions or advice.

When interpreting a statute, our goal is to effectuate the Legislature’s intent. 

(Riverside County Sheriff’s Dept. v. Stiglitz (2014) 60 Cal.4th 624, 630; Roger Cleveland 

Golf Co., Inc. v. Krane & Smith, APC (2014) 225 Cal.App.4th 660, 677.) We begin with 

the plain, commonsense meaning of the language used by the Legislature. (Riverside 

County Sheriff’s Dept., at p. 630.) If the language is susceptible to more than one 

reasonable construction, we may look to extrinsic aids, such as the legislative history, the 

purpose of the statute, and public policy. (Holland v. Assessment Appeals Bd. No. 1
14

(2014) 58 Cal.4th 482, 490; Los Angeles County Metropolitan Transportation Authority 

v. Alameda Produce Market, LLC (2011) 52 Cal.4th 1100, 1107.) We avoid any 

construction that would lead to an unreasonable, impractical, or arbitrary result. 

(Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 388; Roger Cleveland 

Golf Co., Inc., at p. 678.) 

Here, the question is whether “includes” in the final clause of the statute is a 

requirement, or denotes examples of the types of information that may be included in a 

confidential communication. To the extent the statutory language is ambiguous, the 

County argues that the statute’s legislative history suggests an answer. Evidence Code 

section 952 was enacted as part of the original Evidence Code in 1965, and replaced the 

former codification of the privilege in Code of Civil Procedure section 1881, subdivision 

2. As originally enacted, the clause at issue stated “and includes advice given by the 

lawyer in the course of that relationship.” (Stats. 1965, ch. 299, art. 3, pp. 1325-1326.) It 

was amended in 1967 to read “and includes a legal opinion formed and the advice given 

by the lawyer in the course of that relationship.” (Stats. 1967, ch. 650, § 3, p. 2006, 

italics added.) This change has been explained as follows: “ ‘The comment of the Law 

Revision Commission to the 1967 amendment makes clear the scope of the amendment. 

“The express inclusion of ‘a legal opinion’ in the last clause will preclude a possible 

construction of this section that would leave the attorney’s uncommunicated legal 

opinion—which includes his impressions and conclusions—unprotected by the privilege. 

Such a construction would virtually destroy the privilege.” ’ [Citation.]” (Fireman’s 

Fund Ins. Co. v. Superior Court, supra, 196 Cal.App.4th at p. 1273; Benge v. Superior 

Court (1982) 131 Cal.App.3d 336, 345 [the “express inclusion of a ‘legal opinion’ in the 

last clause of section 952 precludes inquiry into the lawyer’s uncommunicated 

impressions and conclusions concerning the case”].) Thus, the County avers, the 

challenged language was not included to limit the privilege to only those communications 

encompassing the attorney’s legal opinion; if a legal opinion was not part of the original 

definition of confidential communication, it cannot have been a required element. We 

agree. The Legislature’s intent in amending Evidence Code section 952 was clearly not 
15

to restrict privileged communications to those containing a legal opinion, but to protect

uncommunicated opinions. Although the 1967 amendment does not definitively suggest 

what was intended by the original use of the phrase “includes advice given by the 

lawyer,” the amended statute’s use of the conjunctive “and” to link “a legal opinion 

formed” with “the advice given” does not readily suggest a communication is privileged 

only if it contains an attorney’s advice. Certainly, nothing in the California Law Revision 

Commission’s comments to Evidence Code section 952, as originally enacted, suggests

such an intent. (See Cal. Law Revision Com. com., reprinted at 29B pt. 3A West’s Ann. 

Evid. Code (2009 ed.) foll. § 952, pp. 307-308.)4

Moreover, we must construe Evidence Code section 952 to avoid absurd results

and effectuate the Legislature’s intent. As the County points out, the construction 

suggested by the ACLU would be problematic when a communication originates with the 

client. A client’s letter or email to his or her attorney is unlikely to contain a legal 

opinion or legal advice, yet there is little doubt most such communications would fall 

within the statutory definition. Further, the “fundamental purpose behind the privilege is 

to safeguard the confidential relationship between clients and their attorneys so as to 

promote full and open discussion of the facts and tactics surrounding individual legal 

matters.” (Mitchell v. Superior Court, supra, 37 Cal.3d at p. 599; Citizens for Ceres v. 

Superior Court (2013) 217 Cal.App.4th 889, 912 [the “purpose of the attorney-client 

privilege is to enhance the effectiveness of our adversarial legal system by encouraging 

full and candid communication between lawyers and clients”].) These goals would not 

be furthered if clients and attorneys were uncertain whether their communications 

contained sufficient advice or opinion to qualify as confidential communications. Such a 

constricted view of Evidence Code section 952 would chill, rather than encourage, robust 

 

4 The Law Revision Commission’s comments reflect the Legislature’s intent in 

enacting Evidence Code section 952. (Arellano v. Moreno (1973) 33 Cal.App.3d 877, 

884; Assem. Com. on Judiciary, Rep. on Assem. Bill No. 333 (1965 Reg. Sess.) 1 Assem.

J. (1965 Reg. Sess.) p. 1712; Sen. Com. on Judiciary, Rep. on Assem. Bill No. 333 (1965 

Reg. Sess.) 2 Sen. J. (1965 Reg. Sess.) p. 1573.) 
16

discussion between clients and their lawyers. And, the ACLU’s proposed construction of 

Evidence Code section 952 appears impractical in light of Evidence Code section 915. 

Unlike in many other jurisdictions, absent the client’s consent, in California a trial court 

is generally not permitted to require disclosure of materials assertedly protected by the 

attorney-client privilege for in camera review in order to rule upon the claim of privilege. 

(Costco, supra, 47 Cal.4th at p. 736; Citizens for Ceres, supra, at p. 911.) Thus, if the 

parties disagree about whether communications are protected by the attorney-client 

privilege, it is unclear how their claims could be adequately adjudicated if resolution of 

the issue turned on the content of the disputed communications.

5

In any event, the interpretation advanced by the ACLU does not comport with 

existing authority. “During the course of the attorney-client relationship, the protected 

communication may consist of information transmitted between a client and his lawyer, 

advice given by the lawyer, or a legal opinion formed and given by the lawyer in the 

course of that relationship.” (Benge v. Superior Court, supra, 131 Cal.App.3d at p. 345; 

Mitchell v. Superior Court, supra, 37 Cal.3d at p. 601 [warnings to plaintiff from her 

attorney about the effects of chemical exposure were privileged even though they 

involved factual information as opposed to legal advice]; People v. Bolden (1979) 

99 Cal.App.3d 375, 379 [Evidence Code section 952 “uses ‘legal opinion’ to specify one 

type of information protected”]; 2 Witkin, Cal. Evidence (5th ed. 2012) Witnesses, § 111, 

p. 409 [“The protected communication may be either ‘information transmitted between a 

client and his or her lawyer’ or ‘advice given by the lawyer’ ” or “ ‘a legal opinion

 

5 Of course, a litigant might be required to reveal some information in camera to 

enable the court to determine whether a communication is subject to the attorney-client 

privilege. (Costco, supra, 47 Cal.4th at p. 737.) Evidence Code section 915 “does not 

prohibit disclosure or examination of other information to permit the court to evaluate the 

basis for the claim” of privilege, such as whether the privilege is held by the party 

asserting it, whether the attorney-client relationship existed at the time the 

communication was made, or whether the client intended the communication to be 

confidential. (Costco, at p. 737.) And, a party is free to request an in camera review of 

the communications at issue to aid the court. (Id. at p. 740.)
17

formed’ even though not communicated to the client”].) The ACLU cites no authority in 

which a communication between attorney and client, arising out of the attorney’s legal 

representation of the client, was held to be outside the scope of Evidence Code section 

952 because it did not contain a legal opinion or advice.

Costco compels rejection of the ACLU’s position. There, Coscto retained a law 

firm to provide legal advice on whether some of its managers were exempt from 

California’s wage and overtime laws. The firm’s attorney, Hensley, confidentially 

interviewed two Costco managers, and, based in part on those interviews, produced an 

opinion letter for Costco. Subsequently, certain Costco employees filed a class action 

claiming that Costco had misclassified and underpaid its managers. In the course of that 

litigation plaintiffs sought to compel discovery of Hensley’s opinion letter. Costco 

asserted the attorney-client privilege and the work product doctrine. Over Costco’s 

objection the trial court ordered an in camera review of the opinion letter to determine the 

merits of Costco’s claims of privilege. It subsequently ordered disclosure. Portions of 

the letter containing Hensley’s impressions, observations, and opinions were redacted, 

but portions concerning factual information about various employees’ job responsibilities

were disclosed. (Costco, supra, 47 Cal.4th at pp. 730-371.) 

The California Supreme Court held this was error: “the attorney-client privilege 

attach[ed] to Hensley’s opinion letter in its entirety, irrespective of the letter’s content.” 

(Costco, supra, 47 Cal.4th at p. 731.) The court explained: “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. 

[Citations.] Once that party establishes facts necessary to support a prima facie claim of 

privilege, the communication is presumed to have been made in confidence and the 

opponent of the claim of privilege has the burden of proof to establish the communication 

was not confidential or that the privilege does not for other reasons apply.” (Id. at 

p. 733.) “That Costco engaged Hensley to provide it with legal advice and that the 

opinion letter was a communication between Costco’s attorney (Hensley) and Costco are 

undisputed. The letter was ‘confidential,’ defined as ‘information transmitted between a 
18

client and his or her lawyer in the course of [the attorney-client] relationship and in

confidence by a means which, so far as the client is aware, discloses the information to no 

third persons . . . .’ ” (Ibid.) “That Hensley’s opinion letter may not have been prepared 

in anticipation of litigation is of no consequence; the privilege attaches to any legal 

advice given in the course of an attorney-client relationship.” (Ibid.) Accordingly, 

Costco had made out a prima facie claim of privilege. (Ibid.)

The court went on to explain: “The attorney-client privilege attaches to a 

confidential communication between the attorney and the client and bars discovery of the 

communication irrespective of whether it includes unprivileged material.” (Costco, 

supra, 47 Cal.4th at p. 734.) Pointing to Mitchell v. Superior Court, supra, 37 Cal.3d 

591, the court observed: “ ‘Neither the statutes articulating the attorney-client privilege 

nor the cases which have interpreted it make any differentiation between “factual” and 

“legal” information.’ ” (Costco, at p. 734.) “[W]hen the communication is a confidential 

one between attorney and client, the entire communication, including its recitation or 

summary of factual material, is privileged. . . . [If] the factual material referred to or 

summarized in Hensley’s opinion letter is itself unprivileged it may be discoverable by 

some other means, but plaintiffs may not obtain it by compelling disclosure of the letter.” 

(Id. at p. 736.)

Costco then turned to analysis of whether the trial court had erred by ordering in

camera review of the letter. The court concluded such review was improper in light of 

Evidence Code section 915. (Costco, supra, 47 Cal.4th at pp. 736-739.) Significant for 

our purposes here, Costco reasoned: “[B]ecause the privilege protects a transmission 

irrespective of its content, there should be no need to examine the content in order to rule 

on a claim of privilege.” (Id. at p. 739.)

Finally, the court disapproved an earlier decision, 2,022 Ranch v. Superior Court 

(2003) 113 Cal.App.4th 1377. At issue there were communications transmitted to an 

insurer from in-house claims adjusters, who were also attorneys. The insurer claimed all 

the communications were privileged as involving legal advice from its attorneys, whereas 

the petitioner asserted the attorneys had been acting as claims adjusters, not counsel. 
19

(Costco, supra, 47 Cal.4th at p. 739.) The appellate court had distinguished 

communications reporting the results of factual investigations from those reflecting the 

rendering of legal advice, and held only the latter were privileged. (Ibid.) Costco held 

this was error: “The proper procedure would have been for the trial court first to 

determine the dominant purpose of the relationship between the insurance company and 

its in-house attorneys, i.e., was it one of attorney-client or one of claims adjusterinsurance corporation . . . .” (Id. at pp. 739-740.) “If the trial court determined the 

communications were made during the course of an attorney-client relationship, the 

communications, including any reports of factual material, would be privileged, even 

though the factual material might be discoverable by some other means.” (Id. at p. 740.)

Costco teaches that the proper focus in the privilege inquiry is not whether the 

communication contains an attorney’s opinion or advice, but whether the relationship is 

one of attorney-client and whether the communication was confidentially transmitted in 

the course of that relationship. Costco did not state, when describing the requisite 

preliminary showing, that the party claiming the privilege had to show the 

communication contained an opinion, advice, or indeed any particular content; rather, the 

preliminary facts necessary were “a communication made in the course of an attorneyclient relationship.” (Costco, supra, 47 Cal.4th at p. 733.) Costco appears to have 

disapproved a content-based test for determination of the attorney-client privilege, in that 

it did not distinguish between the factual or legal aspects of the communications. Instead, 

the inquiry turned on whether there was an attorney-client relationship between the 

parties to the communication. Of course, in Costco, the communication at issue was an 

opinion letter, which by definition must have contained the attorney’s legal opinions. But 

Costco’s analysis did not hinge upon this circumstance; instead, it made clear that the 

privilege protects a “transmission irrespective of its content.” (Id. at pp. 739, 731.) 

Costco is therefore fatal to the claim that Evidence Code section 952 applies only to 

communications that contain a legal opinion or advice.
20

b. Application here

We turn, then, to the question of whether the County met its burden of establishing 

the preliminary facts necessary to support application of the privilege, that is, a 

communication made in the course of an attorney-client relationship. (Costco, supra,

47 Cal.4th at p. 733; see Citizens for Ceres v. Superior Court, supra, 217 Cal.App.4th at 

p. 911.) That the law firms in question were retained to provide the County with legal 

advice in the matters to which the invoices pertained is undisputed; indeed, the fact of the 

representation was the reason the ACLU made the CPRA requests. There is also no 

dispute that the invoices constituted information transmitted by the law firms to the 

County in the course of the representation. (See Wellpoint Health Networks, Inc. v. 

Superior Court (1997) 59 Cal.App.4th 110, 123 [where underlying facts were undisputed, 

petitioners met their burden to show preliminary facts necessary to support a prima facie 

claim of privilege].) 

Appended to the County’s brief in answer to the petition below was the 

declaration of Roger H. Granbo, an Assistant County Counsel in the Law Enforcement 

Division of the Los Angeles County Counsel’s Office. Granbo declared, under penalty of 

perjury, that his duties included supervising outside counsel in their representation of the 

County and other public agencies for which the Board was the governing body. His 

duties included processing billing invoices, and he was familiar with the manner of their 

processing. He believed such invoices were subject to the attorney-client privilege and 

kept “these documents and the information they contain, confidential.” He further 

declared that “we make every effort to confine distribution of this material and 

information to our office alone, and to authorized representatives of the client, who are 

similarly required to keep the information confidential. That is our intent and policy as a 

general matter and in this particular matter.” The trial court did not expressly rule on 

whether the declaration established the requisite confidentiality, but neither the court nor 

the ACLU appear to question its sufficiency. Thus, the invoices were confidential 

communications between attorney and client within the meaning of Evidence Code 

section 952. 
21

The trial court’s contrary ruling stated that the County had to do more than claim 

the documents were confidential, because “Evidence Code section 952 does not 

automatically apply to any communication between an attorney and his or her client.” In 

support, the court cited People v. Gionis (1995) 9 Cal.4th 1196, 1210. The court was 

certainly correct that not all communications involving an attorney are ipso facto 

privileged. As Gionis explained: “We cannot endorse the . . . view that the attorneyclient privilege applies whenever issues touching upon legal matters are discussed with 

an attorney. That has never been the law. Significantly, a communication is not 

privileged, even though it may involve a legal matter, if it has no relation to any 

professional relationship of the attorney with the client. [Citation.] Moreover, it is not 

enough that the client seek advice from an attorney; such advice must be sought from the 

attorney ‘in his professional capacity.’ ” (Id. at p. 1210.) In Gionis, the defendant’s 

statements to his friend, an attorney, were all made after the attorney had declined to 

represent him, and thus were not privileged. (Id. at pp. 1210-1212.) The privilege also 

does not apply “when the attorney acts merely as a negotiator for the client or is 

providing business advice [citation]; in that case, the relationship between the parties to 

the communication is not one of attorney-client.” (Costco, supra, 47 Cal.4th at p. 735.) 

But none of these circumstances were present here. It is undisputed that the County 

engaged the law firms to represent it in the lawsuits, and the invoices arose from those 

very lawsuits. 

The trial court’s ruling also stated that the County had failed to assert specific facts 

demonstrating “how the challenged document qualifies as a privileged communication.” 

Presumably, the trial court meant the County had to do more to show the content of the 

communications was privileged. However, as Costco explained, “because the privilege 

protects a transmission irrespective of its content, there should be no need to examine the 

content in order to rule on a claim of privilege.” (Costco, supra, 47 Cal.4th at p. 739.) 

The court also reasoned that the County had failed to show how, with proper redactions, 

the billing statements would qualify as privileged communications. But, “when the 
22

communication is a confidential one between attorney and client, the entire 

communication” is privileged. (Id. at p. 736.) 

The ACLU argues that the CPRA must be broadly construed, and the exemptions 

to it must be narrowly construed. (Cal. Const., art. I, § 3, subd. (b)(2) [a statute “shall be 

broadly construed if it furthers the people’s right of access, and narrowly construed if it 

limits the right of access”]; Anderson-Barker, supra, 211 Cal.App.4th at p. 60; Marken v. 

Santa Monica-Malibu Unified School Dist. (2012) 202 Cal.App.4th 1250, 1262.) But, the 

CPRA expressly exempts from disclosure records that are privileged under the relevant 

provisions of the Evidence Code. The attorney-client privilege is also anchored in public 

policy (Roberts v. City of Palmdale, supra, 5 Cal.4th at p. 380; Citizens for Ceres v. 

Superior Court, supra, 217 Cal.App.4th at p. 913). As we have explained, the invoices in 

question fall within the express parameters of Evidence Code section 952. We may not 

disregard the plain application of the statute under the guise of narrow construction. A 

narrow construction of an exception that is a statutory privilege cannot reasonably be 

construed to be narrower than the scope of the privilege itself.

The ACLU also contends that public access to the billing records in question is a 

matter of utmost public importance. It urges that the “public has a right to know how its 

government is using––or misusing––taxpayer money, especially when that money is 

being used to defend against lawsuits relating to allegations of excessive force by County 

employees, which itself is of public interest.” They point to authority observing that “[i]t 

is difficult to imagine a more critical time for public scrutiny of its governmental 

decision-making process than when the latter is determining how it shall spend public 

funds.” (San Diego Union v. City Council (1983) 146 Cal.App.3d 947, 955.) We agree

that significant public interests are involved. But, as noted, our Supreme Court has 

observed that where the attorney-client privilege applies, disclosure may not be ordered, 

without regard to relevance, necessity or the particular circumstances of the case. 

(Costco, supra, 47 Cal.4th at p. 732.) And, while the invoices themselves are privileged, 

information that is not otherwise privileged does not become so merely by being 

transmitted to, or in this case from, an attorney. “ ‘ “While the privilege fully covers 
23

communications as such, it does not extend to subject matter otherwise unprivileged 

merely because that subject matter has been communicated to the attorney.” ’ ” (Id. at 

p. 735; Edwards Wildman Palmer LLP v. Superior Court (2014) 231 Cal.App.4th 1214, 

1234.) Therefore, to the extent the information the ACLU seeks is available in a 

nonprivileged source, the fact the invoices are privileged does not necessarily protect the 

information itself.6

Next, the ACLU urges that application of the attorney-client privilege to billing 

records will “wreak havoc with the procedures for seeking fees under state and federal 

fee shifting statutes. If an attorney’s billing descriptions are categorically privileged, . . . 

statutes, cases, and courts’ procedural requirements would, in effect, require prevailing 

parties to routinely violate the attorney-client privilege and work product doctrine to 

recover” fees to which they are entitled. We believe this concern is overstated. The 

Evidence Code provides an exception to the privilege when there has been a breach of 

duty arising out of the lawyer-client relationship. (See Evid. Code, § 958; Carlson, 

Collins, Gordon & Bold v. Banducci (1967) 257 Cal.App.2d 212, 227-228 [“It is an 

established principle involving the relationship of attorney and client that an attorney is 

released from those obligations of secrecy which the law places upon him whenever the 

disclosure of the communication, otherwise privileged, becomes necessary to the 

protection of the attorney’s own rights”].) Detailed billing statements are not always 

necessary to support a fee award. (See Concepcion v. Amscan Holdings, Inc., supra, 

223 Cal.App.4th at p. 1324, and authorities cited therein [“It is not necessary to provide 

detailed billing timesheets to support an award of attorney fees under the lodestar 

method”].) And, of course, a client is free to waive the attorney-client privilege, thereby 

allowing his or her attorneys to provide detailed time records when necessary to support a 

 

6 Because we conclude the attorney-client privilege precludes discovery of the 

billing records, we express no opinion as to whether the information contained in the 

billing records might be discoverable by some other means. 
24

request for attorney fees. (See Evid. Code, § 912, subd. (a) [privilege is waived if the 

holder “has consented to disclosure made by anyone”].) 

Because we conclude the County met its preliminary burden to show the requested 

records were confidential communications within the meaning of Evidence Code section 

952, we grant the County’s petition and order the superior court to vacate its order 

compelling disclosure. In light of our conclusion, we do not reach the parties’ 

contentions regarding application of the CPRA’s “catchall” exemption or Business and 

Professions Code sections 6149 and 6148. 
25

DISPOSITION

The petition is granted. The superior court is directed to vacate its order 

compelling the County to disclose the records requested in the ACLU’s July 1, 2013 

CPRA request.

CERTIFIED FOR PUBLICATION

ALDRICH, J.

We concur:

EDMON, P. J.

KITCHING, J.