1 Filed 7/24/13 Walley v. Super. Ct. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THOMAS E. WALLEY,
Petitioner,

v.
THE SUPERIOR COURT OF ORANGE COUNTY, Respondent;
MATT HOOVER et al.,

Real Parties in Interest. G048340 (Super. Ct . No. 30-2011-00529475)

O P I N I O N

Original proceedings; petition fo r a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Frederick Paul Horn, Judge. Petition granted. Sedgwick, Curtis D. Parvin, Freder ick B. Hayes and Douglas J. Collodel
for Petitioner.2 No appearance fo r Respondent. Matt Hoover, in pro. per., for Real Party in Interest. Sarah Martin, in pro. per., for Real Party in Interest. Berger Kahn and Steven H. Gentry fo r Real Party in Interest Berger Kahn.

THE COURT: * Thomas E. Walley petitions this court after the trial court denied his motion to quash a deposition subpoena that was serv ed on his attorneys. The subpoena sought production of accounting document s transmitted to him and related to their representation of him. Walley has shown th e deposition subpoena sought the produc tion of documents protected by the attorney-client privilege; Matt Hoover has not carried his burden to show otherwise. Therefore, we grant Walley’s petition for a peremptory writ of mandate directing the trial court to vacate its order denying the motion to quash and to grant the
motion.

BACKGROUND

I. P RIOR L ITIGATION B ETWEEN W ALLEY AND H OOVER

. Walley, an attorney w ith the law firm of Good, Wildman, Hegness & Walley, represented real party in interest, Sa rah Martin, and her business, Footprints ‘N More, Inc., in a landlord/tenant dispute betw een Martin and her commercial landlord. Real party in interest, Hoover, was Martin’s boyfriend at the time and became a co-client of Walley’s law firm. At some point, Hoover and Martin’s relationship deteriorated. Wally’s law firm continued to represent Martin, but unilaterally discontinued its representation of Hoover.

* Before O’Leary, P. J., Fybel, J., and Thompson, J.3 Hoover filed an arbitration claim agai nst Walley and his law firm, asserting causes of action for, inter alia, breach of fiduciary duty and legal malpractice (the arbitration action). Attorn ey Steven H. Gentry, of the Berger Kahn law firm (Berger Kahn), represented Walley in the arbitration acti on. The arbitrator found Walley and his law firm violated their ethical duty to Hoover and committed malpractice. The arbitrator awarded Hoover over $200,000. Hoover filed a complaint against Ma rtin asserting a claim for breach of
contract and also common counts to recover money she allegedly owed him (the Martin action). Martin filed a cross-complaint agai nst Hoover in the Martin action, asserting
various breach of contract and tort claims against him. Gentry and Berger Kahn represented Martin in the Martin action. The Martin action proc eeded to a bench trial; and the trial court entered judgment in favor of Martin on the comp laint and in favor of
Hoover on Martin’s cro ss-complaint. In May 2009, Hoover f iled a complaint against Mar tin, Footprints ‘N More, Walley, Walley’s law firm, Gentry, and Berger Kahn in which he asserted claims for malicious prosecution (based on Martin’s cr oss-complaint in the Martin action), aiding and abetting, and conspiracy to commit mali cious prosecution (the malicious prosecution action). The trial court granted the defend ants’ special motions to strike filed in the malicious prosecution action, a nd entered a judgment of dismi ssal. In an unpublished opinion, a panel of this court affirmed the judgment. ( Hoover v. Walley (Nov. 9, 2010, G042813) [nonpub . opn.].)

II. H OOVER F ILES THE I NSTANT A CTION

. In December 2011, Hoover filed a form complaint against Walley asserting a claim for breach of fiduciary duty (the instant action). In the complaint, Hoover alleged the following as the basis of his claim: “Defendant breached his fiduciary duty of4 loyalty and confidentiality to me by acting adverse to me in a matter in which he previously represented me in. Because of his intentional malicious acts against me, I suffered extreme damage that I would not have otherwise suffered. I believe and based thereon herein allege that defendants were the main driving force behind a third parties litigation against me. The third party litigati on was directly related to matters that defendants previously repr esented me in.”
III. H OOVER S ERVES A D EPOSITION S UBPOENA ON B ERGER K AHN ; W ALLEY F ILES M OTION TO Q UASH W HICH IS D ENIED BY THE T RIAL C OURT

. Hoover served a deposition subpoena (the subpoena) on the custodian of records for Berger Kahn in th e instant action, seeking two categories of business records: (1) “All accounting records, in cluding account receivable a nd billing system records, which are related to [the Martin action]”; and (2) “All accounting records, including account receivable and billing sy stem records, which are re lated to [the arbitration action].” Walley filed a motion to quash the s ubpoena, pursuant to Code of Civil Procedure section 1987.1, subdivision (a), as to the second ca tegory of subpoenaed records on grounds including that the records sought were (1) protected from disclosure by the attorney-client privilege and the attorney work-product doctri ne, (2) protected from disclosure by Walley’s right to privacy, and (3) irrelevant to the subject matter of the instant action. Walley filed a declarati on in support of the mo tion to quash in which he stated, “[t]he referenced ‘accounting records’ includi ng ‘billing statements’ identified in Hoover’s deposition subpoena include attorney-client privileged communications between [him] and [his ] attorneys at the Berger Kahn law firm.” 1 Following a hearing

1 Our record contains Gentry’s declar ation filed in opposition to a motion to compel filed by Hoover in which he sought an order compelling production of the first category of accounting records listed in the subpoena—those pertaining to the Martin5 during which the trial court discussed Berger Kahn redacting privileged information on the subpoenaed docum ents, the court denied the motion to quash and ordered responsive documents to be produ ced within 30 days.
IV.
W ALLEY F ILES THE P ETITION FOR W RIT OF M ANDATE /P ROHIBITION

. Walley filed the petition for writ of mandate/prohibition (the petition) in which he sought various forms of relief, in cluding the issuance of a peremptory writ directing the trial court to vacate its orde r denying Walley’s motion to quash. The petition also requested a stay of the court’ s order denying the motion to quash pending this court’s decision on the merits of the petition. We invited real parties in interest, Hoover, Berger Kahn, and Martin, to file an informal response to the petition, and the

action and not the arbitration action. At the hearing on the mo tion to compel, after Walley’s attorney cited Gentry’s declaration during a general discu ssion of the subpoena, the court stated it had not yet seen that decl aration (the hearing on the motion to compel was not held until 14 days after the hearing on the motion to quas h). Walley’s counsel offered a copy of the declara tion to the court during the hear ing; the record is unclear whether the trial court accepted a copy of it during the hearing and whether the court relied upon it in deciding the motion to compel. In his declaration, Gentry referred to both categories of documents sought by the subpoena, stating in part: “In connection w ith [the Martin action and the arbitration action], Berger Kahn sent periodic invoices to the respective clients. Those invoices contained detailed information regarding vari ous tasks performed in the representation and the time associated with each task. I have always considered the contents of those invoices to be confidential information prot ected by the attorney-client privilege.” Gentry further stated he “beca me aware that the clients in both of these representations had taken appropriate legal steps to contes t the production of records by Berger Kahn based, among other things, on the existence of the privilege. Berger Kahn did not previously file written oppositi on to the [subpoena] because of its belief that the privilege belongs to the clients, not the attorney, and b ecause of its understanding that both former clients were aware of the [subpoena] and we re contesting it. Berger Kahn’s silence at that time was never intended to suggest th at it believed [Hoover] was entitled to the records in question.”6 parties complied. 2 We stayed the trial court procee dings pending the resolution of the petition.

DISCUSSION Walley argues, inter alia, the trial court erred by denying his motion to quash because the subpoena required the production of documents protected by the attorney-client privilege. For the reasons we will explain, we agree the subpoena sought privileged documents, and thus the trial court should ha ve quashed the subpoena.
I.
S TANDARD OF R EVIEW

. Although writ review of discovery orders is not favored, it is appropriate to review the production of documents which ma y be subject to a claim of privilege. ( Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 95 8, 965.) “Extraordinary review of a discovery order will be granted when a ruling threatens immediate harm, such as loss of a privilege against disclosure, fo r which there is no other adequate remedy.” ( Zurich American Ins. Co . v. Superior Court (2007) 155 Cal.App. 4th 1485, 1493.)
We review the trial court’s discover y order for abuse of discretion. ( Krinsky v. Doe 6 (2008) 159 Cal.App.4t h 1154, 1162 [reviewin g order denying motion to quash subpoenas].) The trial court’s de termination that various documents were not protected by the attorney-client privilege or the work product doctrine is also reviewed for an abuse of discretion. ( National Football League Proper ties, Inc. v. Superior Court (1998) 65 Cal.App.4th 100, 108; In re Jeanette H. (1990) 225 Cal.App.3d 25, 31.) “[A]n

2 In his response to the petition, Hoover argues this court lacks jurisdiction to adjudicate the petition because he was never se rved with any documents relating to the petition by mail or by personal serv ice. The proof of service attached to the petition, however, shows Hoover was personally served on April 23, 2013, at the same address listed on his response to the petition.7 error of law is an abuse of discretion.” ( Knapp v. AT&T Wireless Services, Inc. (2011) 195 Cal.App.4th 932, 939.)
II.
T HE A TTORNEY -C LIENT P RIVILEGE AND A LLOCATION OF B URDENS OF P ROOF

. As our Supreme Court has explained: “The attorney-client privilege, set forth at 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 . . . .’ The privilege ‘has been a hallmark of Anglo-American jurisprudence for almost 400 years.’ [Citation. ] Its fundamental purpose ‘is to safeguard the confidential relationship between clients a nd their attorneys so as to promote full and open discussion of the facts and tactics surro unding individual legal matters. [Citation.] . . . [¶] Although exercise of the privilege may occasionally result in the suppression of relevant evidence, the Legislature of this st ate has determined that these concerns are outweighed by the importance of preserving confidentiality in the attorney-client relationship. . . . “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.]’ [Citation.] ‘[T]he privilege is absolute and disclosure may not be ordered, w ithout regard to relevance, necessity or any particular circumstances peculiar to the case.’” ( Costco Wholesale Corp. v. Superior
Court (2009) 47 Cal.4th 725, 733, italics added ( Costco ).) The application of the attorney-client privilege is liberally construed. ( Benge v. Superior Court (1982) 131 Cal.App.3d 336, 344.) The term “confidential communication,” for purposes of the attorney-client privilege, is broadly defined in Evidence Code section 952 as follows: “‘[C]onfidential communication between client and lawyer’ means information transmitted between a client and his or her lawyer in the course of that relationship an d in confidence by a8 means which, so far as the client is aware, discloses the informa tion to no third persons other than those who are present to further the in terest of the client . . . or those to whom disclosure is reasonably necessary for th e transmission of the information or the accomplishment of the purpose for which the lawy er is consulted, and includes a legal opinion formed and the advice given by the lawy er in the course of that relationship.” Additionally, “[t]he 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.) In the context of a discovery dispute, the California Supreme Court in Costco, supra, 47 Cal.4th at page 733 explained: “The party claiming the privilege has the burden of establishing the pr eliminary facts necessary to support its exercise, i.e., a
communication made in the course of an attorn ey-client relationship. [Citations.] Once that party establishes facts necessary to su pport a prima facie claim of privilege, the communication is presumed to have been ma de in confidence and the opponent of the claim of privilege has the burden of pr oof to establish the communication was not confidential or that the privilege does not for other reasons apply. [Citations.]” ( Costco , supra , 47 Cal.4th at p. 733.) 3

III.
T HE T RIAL C OURT E RRED BY D ENYING THE M OTION TO Q UASH

In the motion to quash, Walley argued the subpoena required the production of confidential communications with in the meaning of Evidence Code section 952 because it required the production of “B erger Kahn’s ‘accounting records’ including

3 Hoover does not contend any exceptions to the attorney-client privilege, such as the crime-fraud exception, apply here. Nor does Hoover contend the privilege was waived.9 ‘billing system records’ for its representation of Walley in the arbitration matter.” He
contended these documents c onstituted “attorney-client comm unications between Walley and his counsel Berger Kahn.” On its face, the subpoena seeks written communications between the attorney and its client in the c ourse of their attorney-client relationship. Except for the purpose of furthering the client ’s interest, such as in the case of a third person paying for the client’s attorney fees , such documentation and information would not be disclosed to third persons. Consider ing the broad language of section 952, coupled with the liberal application of the attorney-client privilege and the general description of the subpoenaed docum ents, those documents fall within the statute’s expansive definition of confidential communications. (See Benge v. Superior Court, supra, 131 Cal.App.3d at p. 344.) Hoover did not produce any evidence rebutting Walley’s showing that the records sought by the subpoena are protected by the a ttorney-client privilege under Evidence Code 952. That poi nt is dispositive here, resu lting in the granting of the petition. The parties have not cite d any California case, a nd we have found none, which specifically analyzes wh ether attorney accounting reco rds transmitted to the client constitute attorney-client confidential communi cations within the me aning of Evidence
Code section 952. While a few cases assume attorney billing statem ents are confidential
communications in other contex ts, no California case has examined the application of the privilege to such documentation and communi cations in the context of discovery. Instead, such assumptions have been made in the context of disputes over the reasonableness of attorney fees. (See, e.g., Banning v. Newdow (2004) 119 Cal.App.4th 438 [holding bills redacted to protect attorney-client privile ge enabled the defendant to challenge the reasonablene ss of attorney fees]; Smith v. Laguna Su r Villas Community
Assn. (2000) 79 Cal.App.4th 639, 645-646 [the a ttorney-client privilege barred disclosure10 of privileged attorney billing documents because the attorney ’s client was the defendant condominium association, and not the plainti ff residents who sought the documents].) In 1986, the Legislature protected some financial information related to the attorney-client relationship by enacting Bu siness and Professions Code section 6149, which provides, “[a] written fee contract shall be deemed to be a confidential communication within the meaning of subdivision (e) of Section 6068 [4] and of Section
952 of the Evidence Code.” An attorney fee contract is simi lar in subject matter to the attorney’s accounting records at issue in this proceeding. Specifically, both documents are connected to an attorney ’s representation of a clie nt; both contain information regarding the attorney’s billing rates and paym ent arrangements with that client; and both may describe the services rendered or to be rendered. Although we do not equate a written fee contract with all billing records, Business and Professions Code section 6149 illustrates the legislature’s intent to protect the kind of information at issue in this proceeding. In opposition to Walley’s motion to qu ash, Hoover relied on federal cases for the proposition that attorney billing statements are discove rable. Unlike California law, which as discussed ante , deems attorney fee contracts to be protected by the attorney-client privilege pursu ant to Business and Professions Code section 6149, federal common law provides, ‘“the nature of [an a ttorney’s] fee arrangements with his clients [is] not [a] confidential communication[] prot ected by the attorney-client privilege.”’ ( In
re Osterhoudt (1983) 722 F.2d 591, 592 .) California law, not federal law, applies in this

4 Business and Professions Code section 60 68, subdivision (e) states, in pertinent part, an attorney has a duty “[ t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” (Bus. & Prof. Code, § 6068, subd. (e)(1).)11 case; therefore, Hoover’s legal authority is inapt. 5 In any event, ther e is an exception to the general federal rule where “in the circumst ances of the case disclosure . . . [is] in
substance a disclosure of the confidential communication in the professional relationship between the client and the attorney.” ( Id. at p. 593.) That exception may well apply here,
but we do not need to reach the issue because we decide th e case based on California law. At the hearing on the mo tion to quash, the trial court suggested documents responsive to the subpoena might contain privileged informati on that could be redacted. The trial court’s order, however, denied the motion in its entirety. 6 Walley carried his burden of estab lishing that the subpoena sought documents protected by the attorney-client privilege, and Hoover failed to carry his burden to establish the privilege did not apply. Accordingly, we conclude the trial court’s order denying the motion to quash constituted error.
Because we conclude the trial court erred by denying the motion to quash on the ground the subpoena sought documents protected by the attorney-client privilege, we do not consider Walley’s other grounds for challenging the tria l court’s order.

5 We acknowledge the handful of Califor nia cases that rely on federal cases applying federal law regarding the attorney-c lient privilege. All of those cases predate the enactment of Business and Professions Code section 6149 and are otherwise inapplicable. (See, e.g., Willis v. Superior Court (1980) 112 Cal.App.3d 277, 291-295.) 6 Code of Civil Procedure section 1987.1 , subdivision (a) provides in relevant part: “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivisio n (b), . . . may make an order quashing the subpoena entirely, modifying it, or direc ting compliance with it upon those terms or conditions as the court shall declare, including protective orders.”12 DISPOSITION There is no factual dispute regardi ng the trial court’s order denying the motion to quash. The petition, responsive briefing, and th e moving and o pposing papers on file from the proceedings below more than adequately address the issues raised by the petition. Hence, neither further briefing nor oral argument is required for the disposition of the petition. Petitioner is entitled to a peremptory writ of mandate. Let a peremptory writ of mandate issu e directing the superior court to vacate its April 10, 2013, order denying petitioner’s motion to quash the deposition subpoena and to enter a new order granting th e motion to quash the deposition subpoena. The stay previously issu ed by this court is dissolved. In the interests of justice, each party shall bear its own costs.