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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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 for 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, Frederick B. Hayes and Douglas J. Collodel 

for Petitioner. 
2 

 No appearance for 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 for 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 served on his attorneys. The subpoena sought 

production of accounting documents transmitted to him and related to their representation 

of him. Walley has shown the deposition subpoena sought the production 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. 

PRIOR LITIGATION BETWEEN WALLEY AND HOOVER. 

Walley, an attorney with the law firm of Good, Wildman, Hegness & 

Walley, represented real party in interest, Sarah Martin, and her business, Footprints ‘N 

More, Inc., in a landlord/tenant dispute between 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 against Walley and his law firm, asserting 

causes of action for, inter alia, breach of fiduciary duty and legal malpractice (the 

arbitration action). Attorney Steven H. Gentry, of the Berger Kahn law firm (Berger 

Kahn), represented Walley in the arbitration action. 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 Martin 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 against 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 proceeded to a bench trial; 

and the trial court entered judgment in favor of Martin on the complaint and in favor of 

Hoover on Martin’s cross-complaint. 

 In May 2009, Hoover filed a complaint against Martin, Footprints ‘N More, 

Walley, Walley’s law firm, Gentry, and Berger Kahn in which he asserted claims for 

malicious prosecution (based on Martin’s cross-complaint in the Martin action), aiding 

and abetting, and conspiracy to commit malicious prosecution (the malicious prosecution 

action). The trial court granted the defendants’ special motions to strike filed in the 

malicious prosecution action, and entered a judgment of dismissal. In an unpublished 

opinion, a panel of this court affirmed the judgment. (Hoover v. Walley (Nov. 9, 2010, 

G042813) [nonpub. opn.].) 

II. 

HOOVER FILES THE INSTANT ACTION. 

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 of 
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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 litigation was directly related to matters that 

defendants previously represented me in.” 

III. 

HOOVER SERVES A DEPOSITION SUBPOENA ON BERGER KAHN; WALLEY FILES MOTION 

TO QUASH WHICH IS DENIED BY THE TRIAL COURT. 

Hoover served a deposition subpoena (the subpoena) on the custodian of 

records for Berger Kahn in the instant action, seeking two categories of business records: 

(1) “All accounting records, including account receivable and billing system records, 

which are related to [the Martin action]”; and (2) “All accounting records, including 

account receivable and billing system records, which are related to [the arbitration 

action].” 

Walley filed a motion to quash the subpoena, pursuant to Code of Civil 

Procedure section 1987.1, subdivision (a), as to the second category 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 doctrine, (2) protected 

from disclosure by Walley’s right to privacy, and (3) irrelevant to the subject matter of 

the instant action. Walley filed a declaration in support of the motion to quash in which 

he stated, “[t]he referenced ‘accounting records’ including ‘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 declaration 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 Martin 
5 

during which the trial court discussed Berger Kahn redacting privileged information on 

the subpoenaed documents, the court denied the motion to quash and ordered responsive 

documents to be produced within 30 days. 

IV. 

WALLEY FILES THE PETITION FOR WRIT OF MANDATE/PROHIBITION. 

Walley filed the petition for writ of mandate/prohibition (the petition) in 

which he sought various forms of relief, including the issuance of a peremptory writ 

directing the trial court to vacate its order 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 motion to compel, after 

Walley’s attorney cited Gentry’s declaration during a general discussion of the subpoena, 

the court stated it had not yet seen that declaration (the hearing on the motion to compel 

was not held until 14 days after the hearing on the motion to quash). Walley’s counsel 

offered a copy of the declaration to the court during the hearing; 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 with [the Martin action and the arbitration 

action], Berger Kahn sent periodic invoices to the respective clients. Those invoices 

contained detailed information regarding various 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 protected by the attorney-client privilege.” 

Gentry further stated he “became aware that the clients in both of these representations 

had taken appropriate legal steps to contest the production of records by Berger Kahn 

based, among other things, on the existence of the privilege. Berger Kahn did not 

previously file written opposition to the [subpoena] because of its belief that the privilege 

belongs to the clients, not the attorney, and because of its understanding that both former 

clients were aware of the [subpoena] and were contesting it. Berger Kahn’s silence at 

that time was never intended to suggest that it believed [Hoover] was entitled to the 

records in question.” 
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parties complied.

2

 We stayed the trial court proceedings 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 have quashed the subpoena. 

I. 

STANDARD OF REVIEW. 

Although writ review of discovery orders is not favored, it is appropriate to 

review the production of documents which may be subject to a claim of privilege. (Crab 

Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958, 965.) “Extraordinary 

review of a discovery order will be granted when a ruling threatens immediate harm, such 

as loss of a privilege against disclosure, for 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 discovery order for abuse of discretion. 

(Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, 1162 [reviewing order denying motion 

to quash subpoenas].) The trial court’s determination 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 Properties, 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 served with any documents relating to the 

petition by mail or by personal service. 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. 
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error of law is an abuse of discretion.” (Knapp v. AT&T Wireless Services, Inc. (2011) 

195 Cal.App.4th 932, 939.) 

II. 

THE ATTORNEY-CLIENT PRIVILEGE AND ALLOCATION OF BURDENS OF PROOF. 

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 and their attorneys so as to promote full and 

open discussion of the facts and tactics surrounding individual legal matters. [Citation.] 

. . . [¶] 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. . . . “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, without 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 and in confidence by a 
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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 . . . 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.” 

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 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. [Citations.]” (Costco, 

supra, 47 Cal.4th at p. 733.)3

 

III. 

THE TRIAL COURT ERRED BY DENYING THE MOTION TO QUASH

In the motion to quash, Walley argued the subpoena required the 

production of confidential communications within the meaning of Evidence Code section 

952 because it required the production of “Berger 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. 
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‘billing system records’ for its representation of Walley in the arbitration matter.” He 

contended these documents constituted “attorney-client communications between Walley 

and his counsel Berger Kahn.” On its face, the subpoena seeks written communications 

between the attorney and its client in the course 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. Considering the broad language of section 952, coupled 

with the liberal application of the attorney-client privilege and the general description of 

the subpoenaed documents, 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 attorney-client privilege under 

Evidence Code 952. That point is dispositive here, resulting in the granting of the 

petition. 

The parties have not cited any California case, and we have found none, 

which specifically analyzes whether attorney accounting records transmitted to the client 

constitute attorney-client confidential communications within the meaning of Evidence 

Code section 952. While a few cases assume attorney billing statements are confidential 

communications in other contexts, no California case has examined the application of the 

privilege to such documentation and communications 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 privilege enabled the defendant to 

challenge the reasonableness of attorney fees]; Smith v. Laguna Sur Villas Community 

Assn. (2000) 79 Cal.App.4th 639, 645-646 [the attorney-client privilege barred disclosure 
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of privileged attorney billing documents because the attorney’s client was the defendant 

condominium association, and not the plaintiff residents who sought the documents].) 

In 1986, the Legislature protected some financial information related to the 

attorney-client relationship by enacting Business 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 similar 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 client; both contain information 

regarding the attorney’s billing rates and payment 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 quash, Hoover relied on federal cases 

for the proposition that attorney billing statements are discoverable. Unlike California 

law, which as discussed ante, deems attorney fee contracts to be protected by the 

attorney-client privilege pursuant to Business and Professions Code section 6149, federal 

common law provides, ‘“the nature of [an attorney’s] fee arrangements with his clients 

[is] not [a] confidential communication[] protected 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 6068, 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).) 
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case; therefore, Hoover’s legal authority is inapt.5

 In any event, there is an exception to 

the general federal rule where “in the circumstances 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 the case based on California law. 

At the hearing on the motion to quash, the trial court suggested documents 

responsive to the subpoena might contain privileged information that could be redacted. 

The trial court’s order, however, denied the motion in its entirety.6

Walley carried his burden of establishing 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 trial court’s order. 

 5

 We acknowledge the handful of California cases that rely on federal cases 

applying federal law regarding the attorney-client 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 subdivision (b), . . . may make an order quashing the 

subpoena entirely, modifying it, or directing compliance with it upon those terms or 

conditions as the court shall declare, including protective orders.” 
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DISPOSITION 

There is no factual dispute regarding the trial court’s order denying the 

motion to quash. The petition, responsive briefing, and the moving and opposing 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 issue 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 the motion to quash the deposition subpoena. 

The stay previously issued by this court is dissolved. In the interests of justice, each 

party shall bear its own costs.