2015-00188583-CU-PO

University Management Co. vs. Evergreen Management Co.

Nature of Proceeding: Motion for Determination of Privilege

Filed By: Radcliffe, Scott E.

Plaintiff University Capital Management, Inc.’s (UCMI) “Motion for Determination of Privilege” is DENIED without prejudice.

The parties’ requests for judicial notice are GRANTED.

This is the second case involving a somewhat complex set of relationships among UCMI, Roger Dreyer, Defendant Evergreen Management Co., LLC (Evergreen), and individual Defendants Ed Messner, Steven Haynes and Arlen Opper. A truncated

version of the allegations and procedural history is this: Dryer was the majority investor in several entities holding commercial properties. UCMI managed the properties until January 2014. Before that time, Opper advised Dryer that UCMI was falling short. Wallace Valuation Advisors, Inc. (Wallace) was retained to audit UCMI’s performance. Following the audit, Dreyer replaced UCMI with Evergreen. Dreyer then sued UCMI in Sacramento County Superior Court Case No. 2014-167625 (the “first case”), but most of that case settled. UCMI filed this case against Evergreen, Messner, Haynes and Opper in December 2015. In its second amended complaint, UMCI alleges the various Defendants interfered with its contractual relationships.

Relevant for present purposes is UCMI’s contention that Messner and Haynes coached Wallace into crafting an audit report that was incomplete and, as a result, unfavorable to UCMI. In written discovery and at depositions to date, the Defendants have objected that some of UCMI’s inquiries into communications among Messner, Haynes, Wallace and Dreyer (and others) improperly seek disclosure of attorney work product. The Defendants and Dreyer contend that, after Wallace produced its audit report, Dreyer retained Wallace, Haynes and Messner as consultants in the first case. The Defendants thus maintain that communications and information arising out of the consulting relationships are work product and protected from disclosure as such. The Defendants and Dreyer also argue certain communications are within the attorney-client privilege. Furthermore, the Defendants and Dreyer argue that the instant motion is an improper motion for reconsideration of issues litigated in the first case. It appears the court in that case entered a protective order based on the existence of an attorney-client relationship extending to Dreyer and others tendered as consultants.

For its part, UCMI argues that the Defendants are withholding communications that took place before any consulting relationships took effect. It also argues that in both this case and the first case, various parties and witnesses produced unredacted documents that constitute some of the “work product” the Defendants now argue should not be disclosed. UCMI thus argues Dreyer and his counsel waived the work product doctrine the Defendants are relying on now. In addition, UCMI argues the Defendants waived work product protection by raising certain affirmative defenses.

The instant motion does not arise by way of a motion to compel answers to deposition questions or other discovery. Instead, UCMI asserts that the Defendants and their counsel intend to raise the work product doctrine in response to future depositions in this case. In this context, UCMI asks the court to “make an order determining the applicability or extent of the claimed privilege as discussed herein.” (Moving Memo. at 10:20-21.) UCMI asks the court to declare that communications between certain persons and at certain times are or are not discoverable. (See id. at 9:16-10:10.) The procedural statutes UCMI cites as authority for the motion are CCP §§ 128, 2017.010 et seq. and Evidence Code § 402.

The motion is denied because it is not sufficiently tethered to a deposition question or written discovery request. Application of the attorney-client privilege or work product doctrine turns upon the surrounding facts. Although UCMI’s desire for clarity going forward is understandable, the court will not issue an advisory opinion.

The court does reject, however, the Defendants’ and Dreyer’s argument that the motion is an improper motion for reconsideration. That issues raised in this motion may have been addressed in a case involving similar issues or parties does not render the motion one for reconsideration under CCP § 1008.

If counsel envision depositions or other discovery in which work product and/or attorney-client privilege objections will be repeatedly raised in this case, they are advised to stipulate to a discovery referee to address those objections in the first instance. (See CCP § 638.)

The court need not rule and does not rule on Evergreen’s objections to evidence.

Disposition

The motion is denied without prejudice.