Sample Petition for Writ of Peremptory Mandate (Without Argument)

This blog is part 2 of my sample Petition for Writ of Peremptory Mandate.  This section followed my Table of Contents and Table of Authorities, which are not included in this blog.

Court of Appeal, 4th Dist., Div. 3 Case Number:

IN THE COURT APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT, DIVISION THREE
_________________________________________________________

DARRELL V. FEIT, NANNETTE FEIT AND JOHN R. WOOLSTON 
  Petitioners,

 vs.

THE SUPERIOR COURT OF THE COUNTY OF ORANGE,

  Respondent.

TANIS L. PIKE; JOSEPH P. PIKE; THOMAS J. PIKE, a minor through his
Parent and guardian at litem Tanis L. Pike; AMBER M. PIKE, a minor through her Parent and guardian ad litem Tanis L. Pike
 
  Real Parties in Interest.
_________________________________________________________
 
Orange County Superior Court Case No. 04CC05477
Hon. Jane D. Myers, Judge
_________________________________________________________

PETITION FOR PEREMPTORY WRIT OF MANDATE;
REQUEST FOR IMMEDIATE STAY OF APRIL 28, 2005 ORDER COMPELLING PRODUCTION OF ATTORNEY-CLIENT PRIVILEGED DOCUMENTS
MEMORANDUM OF POINTS AND AUTHORITIES;
VERIFICATION AND SUPPORTING EXHIBITS
_________________________________________________________
 
ISSUE PRESENTED

Whether pre-litigation and litigation e-mails between a property owner and his authorized agent concerning attorney-client communications and whether co-defendant e-mails concerning attorney-client communications are privileged under the attorney-client privilege, even if those communications are not made in the presence of counsel.

Under Evidence Code sections 951, 952 and 954 and their progeny, the answer to this issue is necessarily, “Yes.” 

Inexplicably, the trial court in this case has answered “No.”

Mandamus review is urgently needed.  Unless this Court intervenes, Petitioners will be compelled to turn over their attorney-client communications to plaintiffs’ counsel on May 9, 2005.  These communications are e-mails which Petitioners intended to be confidential and were never revealed to any third party.  These communications include e-mails concerning the retention of counsel, e-mails concerning information to be relayed to counsel, and e-mails relaying information from counsel to the clients.  These communications also include e-mails between co-defendants concerning the accomplishment of the purpose for which counsel was sought.

The Court had before it in camera all the e-mail communications, and a table explaining the context of the communications to determine whether the e-mails were privileged, in the event that the Court could not otherwise determine whether they were privileged.  The Court refused to recognize that these communications could be privileged and further refused to review the e-mails in camera to determine whether those communications were privileged.  The Court abused its discretion and has failed to follow stare decisis in the process.

Evidence Code §§ 951, 952 and 954 and their progeny support the position being advanced by Petitioners.  Respondent Court should not be permitted to disregard statutory authority and undo more than 24 years of precedent. The attorney-client privilege is intended to cover these communications, and this Court should so uphold the law.

Trial in this matter is scheduled for August 1, 2005.  The majority of discovery in this case has been conducted.  Petitioners are not seeking a stay of all the underlying proceedings but rather, only a stay of the court’s order compelling the production of privileged documents.  Unless this court intervenes, the production of these privileged documents will occur on May 9, 2005 and the production of these documents will unnecessarily undermine Petitioners’ defense. 

For these reasons, as more fully explained hereinbelow, Petitioners seek a peremptory writ of mandate.

INTRODUCTION

In ruling that Real Parties in Interest Joseph Pike, Tanis Pike, Thomas Pike and Amber Pike (“The Pikes”) may compel the production of Petitioners’ privileged communications, Respondent Superior Court has acted in derogation of the clear dictates of Evidence Code sections 951, 952 and 954 and their progeny, which compel the reversal of the trial court’s ruling.

Pursuant to Code of Civil Procedure §§1084 and 1086, Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1037, and National Technical Systems v. Superior Court (2002) 97 Cal.App.4th 415, Darrell V. Feit, Nannette Feit and John R. Woolston respectfully petition this Court of Appeal for a Peremptory Writ of Mandate.  Petitioners request that this Court direct the Superior Court to vacate its order compelling Petitioners to produce their attorney-client privileged e-mails and enter a new and different order denying plaintiffs’ motion to compel, or ordering the trial court to make a case by case determination as to which e-mails are privileged under the attorney-client privilege. 

Mandamus review is appropriate here, in that there is no plain, speedy, and adequate remedy at law.  (Smith v. Superior Court, supra, 10 Cal.App.4th at p. 1037.)  The denial of this writ will result in the production of attorney-client privileged communications to which plaintiffs are not entitled as a matter of law.  Critically, their defense will be compromised by the production of these privileged documents.  Petitioners therefore seek an immediate stay of the court’s ruling pending final resolution of this writ proceeding.

Moreover, mandamus is appropriate where an important issue of law is at stake.  (Smith v. Superior Court, supra, 10 Cal.App.4th at p. 1037.)  Here, the important question is whether Evidence Code sections 951, 952 and 954 may apply to attorney-client communications between a property owner and his authorized agent, who then become co-defendants even though those communications are not made in the presence of counsel.   

The unequivocal rule and the reasoning of section Evidence Code sections 951 and 952 and their progeny is that pre-litigation and litigation communications between property owner and agent as well as between co-defendants concerning attorney-client communications are privileged.  The unequivocal rule and the reasoning of Evidence Code section 952 and its progeny is that Petitioners’ communications concerning pre-litigation and litigated Pike matters are privileged and not subject to discovery under the Code of Civil Procedure. 

STATEMENT OF THE FACTS

The Pikes are tenants who rented a home from Petitioners Darrell Feit and Nannette Feit, from September 2003 through April 2004.  Petitioner John Woolston is the property manager of this property. (Reference to record deleted in this blog.)

The Feits reside in Ohio.  Mr. Woolston resides in California. (Reference to record not included.)

The Pikes claim that Petitioners breached the rental agreement and that Real Parties suffered personal injuries when they were exposed to mold and mildew while residing at their rented premises.  This case concerns the cause and extent of the mold in the property, and the veracity of plaintiffs’ personal injury claims.

PETITION

1. In their verified complaint, the Pikes allege that on September 6, 2003 they purchased a stainless steel refrigerator without an icemaker line from Howard’s Appliances.  Cross-Defendant O’Blene’s Delivery Service installed the new refrigerator, and removed the old refrigerator which had an icemaker line. (References to underlying record  deleted for blog.)

2. Petitioners contend that when the icemaker line was removed, the O’Blene’s delivery man turned off the in-line valve to the icemaker line, but failed to cap the unused icemaker line at the end which lay behind the new refrigerator, thereby permitting any failure of the in-line valve to result in water dripping from the icemaker line.  Extensive water damage to the kitchen cabinet adjacent to the refrigerator supports defendants’ common sense theory. 

3. Real Parties instead argue that the Feit home leaked like a sieve for years, including throughout their tenancy, that Petitioners Woolston and Feit knew of prior water intrusion problems and made cosmetic patches to hide them but failed to remedy the water intrusion problems.  Real Parties further contend that Petitioners failed to disclose prior water intrusion problems to new tenants, thereby ensuring that new tenants would become ill from mold and mildew while residing in the property.

4. Real Parties further contend that in February 2004, they became aware of significant water intrusion problems in the kitchen and that they reported these problems to John R. Woolston in February 2004.

5. Petitioners instead contend that they were not notified of any water intrusion problems until March 20, 2004, and upon attempting to investigate the cause of the water intrusion problem, Real Party Joseph Pike intentionally misdirected the plumber and then Petitioner Woolston as to other theoretical sources of water intrusion.

6. Petitioners further contend that once they became aware of the water intrusion/mold problems and set about to make repairs, the Pikes impeded their repair efforts.  This became especially apparent on April 8, 2004.

7. Beginning at least as late as April 8, 2004, Mr. Woolston and Mr. Feit had e-mail communications which led to the hiring of counsel.  Specifically, Mr. Woolston consulted with counsel for his services on behalf of Darrell Feit.

8. As a result of these communications and on April 12, 2004, counsel caused to be posted a three-day notice to perform or quit so that remediation work could begin.

9. On April 28, 2004, Darrell Feit filed and served the Pikes with an unlawful detainer Complaint in an action entitled Darrell Feit v. Joe Pike and Tanis Pike, OCSC Case No. 04SL002027, seeking their eviction and damages for alleged waste.  Counsel represented Mr. Feit in the unlawful detainer proceeding.

10.  On May 4, 2004, the Pikes filed and served a verified answer to Feit’s unlawful detainer complaint, and a separate unlimited jurisdiction verified complaint for damages and equitable relief in an action entitled Tanis L. Pike, et al v. Darrell V. Feit, et al., Orange County Superior Court case No. 04CC05477, alleging twelve causes of action including:  (1) declaratory relief, (2) breach of residential lease, (3) breach of the duty of good faith and fair dealing, (4) breach of warranty of habitability, (5) breach of the covenant of quiet enjoyment, (6) retaliatory eviction, (7) constructive eviction, (8) private nuisance, (9) negligence, (10) deceit, (11) professional negligence, and (12) equitable indemnity (against Howard’s Appliances, Inc.)

11. As part of the discovery process in the civil action, and on January 3, 2005, Eric J. Schindler caused to be served Plaintiffs’ first request for production of writings, set one, to Petitioners Feit and Woolston.

12.   On February 7, 2005, Petitioners served their Response to Plaintiffs’ first request for production of documents.  As pertinent to the instant Petition, Petitioners produced e-mail communications prior to April 8, 2004.  However, Petitioners objected on attorney-client privilege grounds to Request for Production of Documents No. 12, which sought amongst other things, the production of all e-mail communications between Darrell V. Feit and John R. Woolston from April 8, 2004 forward.

13.    Concurrently with the service of the Response, Petitioners served a privilege log, identifying all documents to which the attorney-client privilege was being asserted.

14. On February 10, 2005, plaintiffs’ counsel served a meet and confer letter, asserting amongst other things, that the attorney-client privilege had been waived.  Counsel then argued that even if the attorney-client privilege had not been waived, the e-mails between co-defendants Darrell V. Feit and John R. Woolston could not be privileged because their communications were not made in the presence of counsel.

15. On February 15, 2005, counsel for Petitioners responded indicating first that the attorney-client privilege had not been waived.  Second, counsel cited case law with supporting argument proving that the communications were in fact privileged.

16. On March 29, 2005, Real Parties filed a Motion to Compel, seeking production of the e-mails which were claimed to be privileged.  The thrust of the motion was that the communications between Darrell V. Feit and John R. Woolston could not be privileged because they were allegedly made outside the presence of counsel.

17. On April 15 2005, Petitioners filed an Opposition to the Motion to Compel.  Petitioners presented case law that the attorney-client privilege applied to confidential communications including those relating to legal advice, pending litigation and active litigation.  Petitioners also included case law that communications between a client and his agent, as well as between co-defendants, could be privileged, even when made outside the presence of counsel. 

18. Petitioners established through Declarations and documents filed by Real Parties, that beginning April 8, 2004 they entered into discussions regarding the retention of counsel.  The Opposition established that Mr. Woolston acted as an intermediary for Mr. Feit when he hired counsel.  The Opposition established that there must have been attorney-client communications from Mr. Feit via Mr. Woolston to counsel, given that counsel caused a Notice to Perform or Quit to be posted on the door of Real Parties’ home on April 12, 2004.  The Opposition established that there were on-going communications between Mr. Woolston and Mr. Feit concerning attorney-client privileged communications, in that an unlawful detainer proceeding was instituted on April 28, 2004.  Moreover, the Opposition established that Mr. Woolston and Mr. Feit must have communicated about attorney-client privileged communications when they became co-defendants and were represented by the same counsel in this civil action filed and served on the Petitioners in May 2004.

19. Petitioners explained that the attorney-client privilege extended to e-mail communications between Darrell V. Feit and John R. Woolston because these communications concerned pending litigation or active litigation.  Petitioners attested that they intended all these communications to be privileged, that the communications had been disclosed to no disinterested third party, and that the communications concerned the litigation between the parties, which included communications about advice received from counsel.

20. Although Petitioners argued that this context alone compelled the finding that the communications were privileged, Petitioners also provided the court with all the disputed e-mails to review in camera, if necessary.  Additionally, Petitioners provided the court with a table explaining the communications, so that the Court could decide, on an e-mail by e-mail basis, whether any of the communications claimed to be privileged were privileged.  Both the e-mails and the table explaining the context of the e-mails were submitted under seal.

 21. On April 21, 2005, Real Parties filed a Reply Brief in Support of their Motion to Compel.

 22. On April 25, 2005, Petitioners filed Objections to the Declaration of Eric J. Schindler in Support of the Motion to Compel.

 23. On April 28, 2005, this matter was called for hearing before the Honorable Jane D. Myers.  Respondent Court ruled in favor of Real Parties, providing virtually no support for its ruling.  The Court stated only that insufficient evidence had been presented to support the claim of the attorney-client privilege.  Respondent Court refused to conduct an in camera review of the e-mails, stating that was “unnecessary.”  The Court then ordered Petitioners to produce the e-mails they contended were confidential by May 9, 2005.

 24. Contrary to Respondent’s ruling, the Court had more than sufficient evidence to determine that the e-mails sought to be produced were in fact privileged.  Petitioners established that their communications began within four days of the hiring of counsel to further their interests in an unlawful eviction proceeding and thereafter, their communications concerned either the unlawful detainer proceeding or this civil action.  Thus, they established that these communications concerned information conveyed to counsel and information conveyed from counsel. 

Petitioners established that those communications were meant to be confidential.  Petitioners established that those communications had not been disclosed to any unnecessary third party.   Petitioners established that their communications were necessary to further their interests of the litigation.   Petitioners provided the Court with the e-mails themselves and with a document explaining the context of those e-mails, so that the court could conduct an in camera review to determine whether Petitioners had met their burden of establishing that the communications were privileged, if there was any question in this regard.  Finally, Petitioners presented the Court with case law directly on point that these elements having been met, Petitioners had established their burden that their e-mail communications were privileged.

25. Instead of reviewing the e-mails and the log explaining the context, the court returned unopened the e-mails along with the sealed table explaining the context of those e-mails.

26. The Court’s ruling if not reversed, will unnecessarily undermine Petitioners’ defense.

27.   Petitioners have no plain, speedy and adequate remedy under law.  The Court’s Order is not separately appealable.  Appeal from any final judgment would not be an adequate remedy because in the meantime plaintiffs will have been provided with communications that Petitioners contend are privileged under the attorney-client privilege.

 28.  An immediate stay of the trial court’s order is necessary and appropriate for these reasons.    

PRAYER

WHEREFORE, Petitioner prays that this Court:

 1. Issue an immediate stay of Respondent Court’s April 28, 2005 Order pending final resolution of this writ proceeding.

 2. Either (a) issue its peremptory writ of mandate directing Respondent Court to set aside and vacate its April 28, 2005 order compelling production of attorney-client privileged documents, and enter a new order denying the production of such documents; (b) issue its peremptory writ of mandate directing Respondent Court to set aside and vacate its April 28, 2005 order and instead review in camera each document claimed to be privileged; (c) issue an alternative writ directing Respondent Court to show cause why it should not so be directed, and upon return to the alternative writ, issue the peremptory writ set forth in subparagraph (a) next above; or (d) other appropriate relief.

3.  Award Petitioners their costs incurred in this proceeding.

Respectfully submitted,
 _________________________
 
VERIFICATION