Filed 2/10/15; unmodified opn. attached CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

LEWIS ANTEN, Petitioner,

v.

THE SUPERIOR COURT OF LOS ANGELES COUNTY,
Respondent;

WEINTRAUB TOBIN CHEDIAK COLEMAN GRODIN LAW CORPORATION,
Real Party in Interest. B258437
(Los Angeles County Super. Ct. No. BC496527)

THE COURT: It is ordered that the opinion filed herein on January 30, 2015, be modified in the following manner: On page 8, the Disposition is deleted and replaced with the following paragraph: The petition is granted. Let a perempto ry writ of mandate issue directing the superior court to vacate its order of June 30, 2014, denying Ante n’s motion to compel further responses, and enter a new order gran ting the motion. Petitioner shall recover his costs of this writ proceeding.This modification constitutes a change in the judgment.
CERTIFIED FOR PUBLICATION.

ROTHSCHILD, P. J. JOHNSON , J. MILLER, J. 

 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.Filed 1/30/15; unmodified opn. CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

LEWIS ANTEN, Petitioner,

v.

THE SUPERIOR COURT OF LOS ANGELES COUNTY,
Respondent;

WEINTRAUB TOBIN CHEDIAK COLEMAN GRODIN, LAW CORPORATION,
Real Party in Interest. B258437
(Los Angeles County Super. Ct. No. BC496527)

ORIGINAL PROCEEDINGS; petition for writ of mandate. Elizabeth Allen White, Judge. Petition granted.

Parker Mills, David B. Parker, and William K. Mills for Petitioner.

No appearance for Respondent.

Bird, Marella, Boxer, Wolpert, Ne ssim, Drooks, Lincenberg & Rhow, Joel E. Boxer, Mark T. Drooks, and Davi d H. Chao for Real Party in Interest.

________________ __________________ _____________2 In a lawsuit between an a ttorney and a client based on an alleged breach of a duty arising from the attorney-client rela tionship, attorney-client communications relevant to the breach are not protecte d by the attorney-client privilege. ( Dietz v.
Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 786 ( Dietz ); Evid. Code, § 958.) 1 Also, if multiple clients retain or consult with an attorney on a matter of common interest and the joint clients later sue each other, th en the communications between either client and the attorney made in the course of th at relationship are not privileged in the suit between the clients. ( Zador Corp. v. Kwan (1995) 31 Cal.App.4th 1285, 1294 ( Zador ); § 962.) But in general, one joint client cannot waive the attorney-client privilege for another joint client. ( American Mut. Liab. Ins. Co. v. Superior Court (1974) 38 Cal.App.3d 579, 595.) The present appeal raises the following issue, which lies at the intersection of those rules: When joint clients do not sue ea ch other but one of th em sues their former attorney, can the nonsuing clie nt prevent the parties to th e lawsuit from discovering or introducing otherwise privileged attorney-clie nt communications made in the course of the joint representation? We answ er that question in the negative.
Lewis Anten and Arnold a nd Lillian Rubin jointly reta ined Marvin Gelfand and
Allan Kirios of the law firm Weintraub Tobin Chediak Co leman Grodin (Weintraub) to advise and represent them on a matter of common interest. 2 This writ proceeding arises from Anten’s malpractice action against those la wyers concerning that representation. In response to discovery propounded by Anten, the lawyers objected that Anten’s discovery sought communications between the lawyers a nd the Rubins that were protected by the attorney-client privilege, which the Rubins expr essly declined to waive. Anten moved to

1 All subsequent statutory references are to the Evidence Code.

2 When Gelfand and Kirios were origina lly retained, they we re with the firm Weissmann Wolff Bergman Coleman Grodin & Evall LLP, Weintraub’s predecessor. Because any distinction betw een Weintraub and its predece ssor is irrelevant to our analysis, for simplicity we re fer to both as Weintraub.3 compel further responses, and the superior court denied the motion on the basis of the attorney-client privilege objection. Anten petitioned for writ relief, and we gr ant the petition. In a lawsuit between the attorney and one or more of the attorney’s joint clients, based on an alleged breach of a duty arising from the attorney-client relati onship, relevant communications between the attorney and any of the joint clients, made in the course of the attorney-joint-client relationship, are not privileged.

BACKGROUND 3 Anten and the Rubins join tly retained the Weintraub lawyers to advise them concerning incorrect tax advice given by thei r former lawyers (hereafter tax lawyers) and to represent them in the tax audit arising from that advice. The Weintraub lawyers
advised Anten and the Rubins that the ta x lawyers’ error barred the favorable tax treatment they had sought for the sale of their business, and the Weintraub lawyers
further advised that the error could not be cu red. On the basis of Weintraub’s advice,
Anten and the Rubins se ttled with the Internal Revenue Se rvice, paying ov er $1,000,000. The Weintraub lawyers further advised An ten and the Rubins that the tax lawyers had committed malpractice and recommended that Anten and the Rubins sue them. At that time, Anten did no t want to sue “but rather sought to pursue resolution by means of settlement.” Weintraub subsequently “fired [Anten] as a client” and represented the Rubins in filing suit against the tax lawyers. Anten later filed the instant suit against both the tax lawyers and Weintraub. In October 2013, Anten moved to co mpel Weintraub to produce further responses to certain form interrogatories and requests for production of documents. Weintraub opposed the motion on the ground that it could not prov ide further responses

3 Our summary of the factual background is drawn from the pleadings and other documents included in th e exhibits to the petition. Noth ing in this opinion should be construed as a resolution of a disputed issue of fact or as a determination that certain facts are undisputed.4 without violating the attorney -client privilege, which the Ru bins had expressly declined
to waive. On December 12 , 2013, the court ordered We intraub to produce “further responses in the form of documents for whic h work product privilege is asserted” but ordered that the documents be produced “onl y to Anten and Rubin. ” The court granted
no other relief. The court’s minute order does not address the claim of attorney-client privilege, and the record before us does no t contain a transcript of the hearing. In late December 2013, Anten served additional discovery on Weintraub. Weintraub objected on multip le grounds including the Rubins’ assertion of the attorney-client privilege. Anten again moved to compel further re sponses. On June 30, 2014, the court sustained Weintaub’s objection based on the Rubins’ assertion of the attorney-client privilege. Largely on that basis, the co urt denied Anten’s motion in its entirety. Anten petitioned this court for a writ of mandate, seeking to overturn the trial court’s discovery ruling of June 30, 2014. We issued an order to show cause.
DISCUSSION Discovery rulings are reviewed for abuse of discretion. ( Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.) Anten argues that the trial court abus ed its discretion by su staining Weintraub’s objection based on the Rubins’ assertion of the attorney-client privilege and by denying Anten’s motion to compel on that basi s. We agree. Under section 958, the
communications at issue are not privileged in Anten’s lawsuit. Section 958 provides that “[t]here is no privilege under th is article [i.e., no attorney-client privilege] as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.” The rationale for the exception is that “‘[i]t would be unjust to permit a client . . . to accuse his attorney of a breach of duty and to inv oke the privilege to pr event the a ttorney from bringing forth evidence in defense of the charge . . . .’ [Citation.]” ( Solin v. O’Melveny & Myers (2001) 89 Cal.App.4th 451, 463-464; see also Glade v. Superior Court (1978) 76 Cal.App.3d 738, 746 ( Glade ).) For example, it would be “fundamentally unfair for a5 client to sue a law firm for the advice obtain ed and then to seek to forbid the attorney who gave that advice from reciting verbatim, as nearly as memory permits, the words spoken by his accuser duri ng the consultation.” ( Solin
, supra , 89 Cal.App.4th at p. 463.) Similarly, a written fee contract between an at torney and a client is itself a privileged communication ( Dietz , supra , 177 Cal.App.4th at p. 786), but it would be unfair to allow the client to invoke the privilege in order to exclude the contract in an action by the attorney for unpaid fees. The wording of section 958 is broad, bu t case law has clarified that the exception
is limited to communications between the lawyer charging or charged with a breach of duty, on the one hand, and the client charging or charged with a breach of duty, on the other. (See Schlumberger Limited v. Superior Court (1981) 115 Cal.App.3d 386, 392-393 ( Schlumberger ); Glade
, supra , 76 Cal.App.3d at pp. 746-747.) Thus, a legal malpractice defendant cannot invoke th e exception in order to permit discovery of communications between the plaintiff and the attorney who repr esents the plaintiff in the malpractice action. ( Schlumberger
, supra , 115 Cal.App.3d at pp. 392-393.) Likewise, a legal malpractice plaintiff canno t invoke the exception in order to permit discovery of communications between the defe ndant attorney “and other clients of his not privy to the relations hip between” the defendant and the plaintiff. ( Glade
, supra , 76 Cal.App.3d at pp. 746-747.) But there is no case law addressing the scenario presented in the instan t case, in which one joint client charges the attorney with a breach of duty, but other joint clients do not. The present case falls square ly within the literal terms of section 958. Anten seeks production of communications relevant to issues of breach by Weintr aub of duties arising out of the lawyer-client relationship. Thus, under the plain language of section 958, the attorney-client privilege does not apply to those communications. Moreover, although we recognize that, for reasons of public policy, a literalistic application of the statute is not always appropriate (see Schlumberger
, supra , 115 Cal.App.3d at pp. 392-393; Glade
, supra , 76 Cal.App.3d at pp. 746-747), here both the plain language of the statute and policy considerations lead to the same result.6 First, because Anten and the Rubins were joint clients of Weintraub, the Rubins’
communications with Weintraub were not confidential as to Anten. 4 “[I]n a joint client situation, confidences are necessarily disclosed.” ( Zador
, supra , 31 Cal.App.4th 1285, 1294.) Consequently, “communicatio ns made by parties united in a common interest to their joint or common counsel, while privileged against strangers, are not privileged as between such parties nor as be tween their counsel an d any of them, when later they assume adverse positions.” ( Croce v. Superior Court (1937) 21 Cal.App.2d 18, 20 ( Croce ); see also Clyne v. Brock (1947) 82 Cal.App.2d 958, 965; Morris v.
Moran (1960) 179 Cal.App.2d 463, 469; Petty v. Superior Court (1953) 116 Cal.App.2d 20, 29-30.) 5 Weintraub’s joint representation of Anten and the Rubins, with their knowledge and consent and on a matter of common interest, thus distinguishes this
case from Glade , which declined to apply secti on 958 to communications between the defendant attorney and other, unrelated clients. (See Glade
, supra , 76 Cal.App.3d at pp. 746-747.) In Glade , the communications at issue we re privileged as to the very plaintiffs who were seeking their disclosure . Here, in contrast, the communications at
issue are not confidential as to Anten. 6

4 “Case law has established that joint c lients are two or more persons who have retained one attorney on a matter of common interest to all of them . . . .” ( Roush v. Seagate Technology, LLC (2007) 150 Cal.App.4th 210, 223 .) At present, no party denies that Anten and the Rubins were joint clients of Weintraub, having jointly retained the Weintraub attorneys on a matter of common interest.

5 Croce , supra , was primarily about a ttorney disqualification, and subsequent case law has questioned Croce ’s holding on that issue. (See Fiduciary Trust Internat. of California v. Superior Court (2013) 218 Cal.App.4th 465, 4 82-485.) But no case casts doubt on the rules articulated in Croce concerning the confiden tiality of attorney-client communications in the contex t of joint representation.

6 Because the communications at issue are not confidential as to Anten, they also are not privileged as to Anten , because the attorney-client privilege applies only to confidential communications. (See §§ 952, 95 4.) That conclusion does not resolve the dispute in this case, however, because thos e communications would still be inadmissible7 Second, considerations of fundamental fa irness that are similar to those underlying section 958 as a whole weigh strongly in favor of applying the statute in this context. For example, if one of two joint clients breached an attorney fee agreem ent but the other joint client did not, and the attorney sued the brea ching client, then it would be unjust to allow the nonbreaching client to thwa rt the attorney’s suit by invoki ng the privilege to prevent introduction of the fee agreemen t itself. Moreover, the risk of collusion between the joint clients would be substantial. Similarly, if an attorney breached a duty to one of two joint clients but breached no duties to the othe r, and the wronged client sued the attorney, then it would be unjust to a llow the nonsuing client to thwa rt the other client’s suit by invoking the privilege to prevent introducti on of relevant attorney-client communications made in the course of the joint representati on. Again, the risk of collusion between the attorney and the nonsuing client would be substantial—indeed, the risk would be particularly significant if the alleged breach were that the atto rney had favored the interests of the nonsuing client over those of the suing client. For all of these reasons, we conclude th at section 958 prohibits the Rubins (and
Weintraub on behalf of the Ru bins) from invoking the attorney-client privilege in Anten’s lawsuit against Weintraub with respect to relevant attorney-client communications made in the course of the joint representation. Because Weintraub’s opposition to Anten’s motion to compel was based entirely on the a ttorney-client privilege, it was an abuse of discretion to deny Anten’s motion to comp el. We accordingly grant the petition and direct the court to grant Anten’s motion.

at trial if they were privileged as to third parties (i.e., parties other than Anten, the Rubins, and Weintraub).8 DISPOSITION The petition is granted. The superior court’s order of June 30, 2014, denying Anten’s motion to compel further responses, is vacated, and the superior court is directed
to enter a new and different order granting the motion. Pe titioner shall recover his costs of this writ proceeding.
CERTIFIED FOR PUBLICATION.

ROTHSCHILD, P. J. We concur:

JOHNSON, J.

MILLER, J. 

 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.