Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING in mandate. Los Angeles County Super. Ct. No. PC 039600 Dzintra Janavs, Judge.
Law offices of Richard A. Marcus and Richard A. Marcus for Petitioner.
No appearance for Respondent.
Hackerbraly, Jeffrey A. Hacker and Kristen E. Green for Real Parties in Interest Roland Rothman and Rothman Hahn, Inc.
Law Offices of William R. Ramsey and William R. Ramsey, in pro. per., and for Real Party in Interest Cindy Hahn.
RUBIN, J.
Brandon Hahn petitions for a writ of mandate directing the trial court to order Roland Rothman to return to Hahn an email from Hahn’s former attorney to Hahn’s wife. We deny the writ.
FACTS AND PROCEEDINGS
Petitioner Brandon Hahn owned a land surveying company and real party in interest Roland Rothman owned an engineering company when they decided to go into business together. In 2005, they incorporated as Rothman Hahn, Inc., each of them becoming a director and 50 percent shareholder. Unfortunately, after joining forces their working relationship soured, and they agreed to dissolve their corporation.
In early August 2006, they signed a “Shareholder General Agreement to Dissolve Corporation,” under which they agreed to try to untangle their businesses by mutual agreement and mediation and then, if necessary, through arbitration. Their corporate attorney, William Ramsey, who was a longtime friend of Brandon Hahn and Brandon’s wife Cindy, agreed to shepherd both men through the dissolution. (Whenever we refer to “Hahn” we mean only Brandon Hahn. To avoid confusing him with his wife, who did not go into business with Rothman and was not a party to the corporate dissolution, our references to “Cindy” shall mean only her.) The dissolution was not amicable, and in late August 2006, Ramsey withdrew as attorney for the corporation and the individuals Hahn and Rothman. Hahn thereafter filed in the trial court a petition to voluntarily wind up the corporation (which Rothman followed by filing a complaint for involuntary dissolution). (Corp. Code, §§ 1800, 1904.)
The following month, Hahn moved for an order compelling arbitration. Rothman opposed the motion, arguing the arbitration agreement was unenforceable because Hahn had procured it by fraud. According to Rothman, attorney Ramsey had secretly represented the interests of Ramsey’s longtime friend Hahn in dissolving the corporation, and had not explained to Rothman the consequences of agreeing to arbitration.
One day before the hearing in January 2007 on the motion to compel, Rothman moved ex parte to file under seal the document that is at issue in this writ proceeding. The document was a seven-week-old email from Ramsey to Hahn’s wife, Cindy, carrying the subject heading “Proposed Shareholders Agreement.” Rothman argued it showed his former attorney Ramsey and the Hahns were conspiring against him in the dissolution proceedings. Asserting that the email supported his claim that the arbitration agreement was unenforceable, he sought the court’s in camera review of the email.
Hahn moved for return of the email. He argued it was a confidential attorney-client communication between Ramsey and Cindy that someone had unlawfully downloaded from Cindy’s email account. Rothman opposed returning the email. He asserted it was a document involving the corporation’s dissolution for which he, as a corporate director and shareholder, had a right of access equal to Hahn’s. Rothman did not explain how he got the email, other than to say he had found it one day in an envelope hand-delivered to his office.
Although there is no conclusive evidence who accessed the email account, Hahn accuses a disgruntled former employee.
The court set a hearing on the motion to return the email and, in the meantime, stayed (and later took off calendar) the hearing on Hahn’s motion to compel arbitration. At the hearing, Cindy declared Ramsey sent her the email after she asked him for legal advice about the mediation between Hahn and Rothman. She told the court she had sought his advice solely for herself and had not shared anything from the email, or indeed even its existence, with her husband. The court disbelieved Cindy. It found she was not Ramsey’s client, and therefore the email was not an attorney-client communication. The court further found that even if the email were an attorney-client communication, the crime fraud exception would apply to its disclosure. The court therefore denied Hahn’s motion to order Rothman to return the email.
The court’s tentative order before staying the hearing on the motion to compel was to grant the motion.
Hahn filed a petition for writ of mandate directing the court to grant his motion. Although not parties to the trial court proceedings, Cindy and Ramsey joined in Hahn’s request for the email’s return.
STANDARD OF REVIEW
When the existence of an attorney-client relationship turns on disputed facts, we affirm a trial court’s ruling if substantial evidence supports it. We may reverse a trial court’s ruling on the existence of a privilege only if undisputed facts decide the question as a matter of law. (HLC Properties, Ltd. v. Superior Court (2005) 35 Cal.4th 54, 60.)
DISCUSSION
Hahn contends the email was a confidential attorney-client communication between Cindy and Ramsey. Under Evidence Code section 954, attorney-client communications are privileged from involuntary disclosure, and therefore, Hahn argues, the court erred in refusing to order Rothman to return the email. The trial court concluded Cindy was not Ramsey’s client, and thus the email was not an attorney-client communication. Accordingly, the court found the privilege against involuntary disclosure did not apply. Because substantial evidence supported the trial court, we affirm its refusal to order the email’s return.
Whether Hahn has standing to seek a writ ordering Rothman to return the email is unclear. Ordinarily, a petitioner must have a beneficial interest to pursue a writ, but the email was not to or from Hahn. (McGee v. Superior Court (1985) 176 Cal.App.3d 221, 228.) On the other hand, even though Ramsey and Cindy are not parties to the underlying dissolution proceedings, they have a beneficial interest in the email. Accordingly, under the liberal standing rules for writ proceedings, they have standing to seek the email’s return. (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1132; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶¶ 15:1 to 15:25, pp. 15-1 to 15-18.)
The proponent who asserts a privilege against disclosure of evidence carries the burden of showing facts supporting the privilege’s application. (State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, 638-639.) For the privilege protecting communication between an attorney and client, the proponent must show an attorney-client relationship exists between the parties to the communication. (Alpha Beta Co. v. Superior Court (1984) 157 Cal.App.3d 818, 824-825.) The Evidence Code defines a “client” as a person who “consults a lawyer for the purpose of . . . securing legal service or advice from him in his professional capacity.” (Evid. Code, § 951.)
Cindy declared she requested legal advice from Ramsey about the upcoming mediation between Hahn and Rothman over the corporation’s dissolution. She stated:
“Attorney William Ramsey sent me the legal strategy and legal suggestions described in the November 20, 2006 e-mail because I had asked for his legal advice and respected his opinion. [¶] Brandon Hahn did not ask me to solicit this advice. [¶] I did it on my own volition so that I would have additional opinions about this suit which affected my own daily life and livelihood as much as my husband’s. [¶] My husband, Brandon Hahn, selected his own attorney [not Ramsey] because of his knowledge of corporate law. However the baseless lawsuit brought by Mr. Rothman against my husband was disrupting my life on a daily basis and threatened our future livelihood. [¶] . . . [¶] I wanted to receive my own legal advice from the attorney that I most respected and trusted. [¶] I never showed or discussed the November 20, 2006 email sent to me from Mr. Ramsey or anyone else, including Brandon Hahn. [¶] . . . [¶] I did not tell my husband that I was seeking legal advice from Mr. Ramsey.”
Ramsey echoed Cindy’s declaration, telling the court that he sent the email “in response to Ms. Hahn’s request for my opinion regarding an upcoming mediation.” (Emphasis omitted.)
The court did not believe Cindy’s declaration that she sought legal advice from Ramsey for herself. The court announced, “This court does not find that the evidence before it clearly establishes that Mrs. Hahn was a client in this situation. She says so, but frankly, I don’t quite believe that testimony.” Substantial evidence and reasonable inferences supported the court’s disbelief.
The email discusses ways Hahn could beat Rothman in the mediation. Hahn and Rothman were the corporation’s only directors, its only shareholders, and the only parties to the dissolution. Cindy was a legal stranger to the corporation’s dissolution and, therefore, there was no legal advice or services for her to receive about the mediation. She had no dog in the fight, making Ramsey’s suggestions to her about the mediation perhaps interesting, but ultimately idle, chitchat of no legal consequence unless conveyed to Hahn--which Cindy swore she did not do. As one compilation of the law involving the attorney-client privilege observes, there is no “attorney-client relationship where the consulting party engages the attorney in what amounts to a casual or incidental discussion of a legal matter, without any real and present intent to employ the attorney to work on the matter professionally.” (48 Am.Jur.3d (1988) Proof of Facts, § 9, p. 525.)
Cindy’s curiosity about the mediation did not make her a client. As our Supreme Court noted:
“We cannot endorse the . . . view that the attorney-client 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.” (People v. Gionis (1995) 9 Cal.4th 1196, 1210.)
Ramsey’s and Hahn’s insistence that Ramsey did not represent Hahn after August 2006 puts them and Cindy between Scylla and Charybdis. Hahn is a party to the mediation, and Ramsey’s email discussion about the mediation would be pertinent legal advice if directed to Hahn, which Cindy swore did not happen. On the other hand, Ramsey’s remarks about the mediation is not legal advice for Cindy because she was not a party to the dissolution. The course the Hahns and Ramsey have charted for themselves leaves Ramsey betwixt and between representing neither Brandon nor Cindy. Because no attorney-client relationship existed, the email was not a privileged attorney-client communication.
Hahn (and through him, Ramsey) contends the email should also be returned because it was Ramsey’s attorney work product. Hahn notes that Code of Civil Procedure section 2018.030, subdivision (a), provides that work product recording an attorney’s impressions, conclusions, and opinions is absolutely protected from involuntary disclosure. The contention fails, however, because work product protection requires a client for whom the attorney performed the work. (Code Civ. Proc., § 2018.020 [purpose of work product protection is to encourage attorneys to “prepare their cases thoroughly”--a “case” presupposes a client]; 2,022 Ranch v. Superior Court (2003) 113 Cal.App.4th 1377, 1389-1390; accord, Watt Industries, Inc. v. Superior Court (1981) 115 Cal.App.3d 802, 805.) Because Ramsey’s email was not written for a legal client, it was not work product. (Accord, Aetna Casulty & Surety Co. v. Superior Court (1984) 153 Cal.App.3d 467, 475, citing Estate of Perkins (1925) 195 Cal. 699, 710 [no attorney work product for business advice]; Watt Industries, Inc. v. Superior Court, supra, 115 Cal.App.3d at p. 805 [same]; see also BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1261 [voluntary disclosure of work product to non-client ends work product protection].)
We affirm the trial court’s refusal to order Rothman to return the email, mindful that troubling issues abound in this case. Both sides appear to come to us with unclean hands. Ramsey has a duty of loyalty to his former client Rothman, yet his email seems to lay out behind Rothman’s back steps to help Hahn get the upper hand in the mediation--a mediation that Ramsey helped set up, no less. But neither is Rothman beyond scrutiny in how he got the email. Ramsey and Cindy allege someone criminally downloaded it from Cindy’s email account. Rothman does not fully explain how he found the email, saying only that it was hand delivered without his prior knowledge to his office. Courts do not encourage self-help in discovery, nor do they countenance the use of purloined documents. (Pillsbury, Madison & Sutro v. Schectman (1997) 55 Cal.App.4th 1279, 1289.) These issues are not, however, ripe for our resolution.
Today we need only address what the trial court decided below. As to that, we agree with the court that the email was not a confidential attorney-client communication. Neither we nor the trial court have decided, however, whether Rothman may use the email in the proceedings below. Answering that question must await further development of the record. This writ proceeding is not the vehicle for doing so.
DISPOSITION
The petition for writ of mandate is denied. The alternative writ is discharged. The parties are to bear their own costs.
We concur: COOPER, P. J., FLIER, J.