Case Number: BC706521 Hearing Date: February 14, 2020 Dept: 40

MOVING PARTY: Defendants D’Onofrio Kahn, P.C. and Joseph D’Onofrio

OPPOSITION: Plaintiffs Megan Green, Michael Warsavsky, Trustee of the Natalia Kassel Trust Dated November 17, 2009, as amended (hereinafter “Plaintiffs”)

On May 19, 2016, Plaintiffs Warsavsky and Green, as trustees of the Natalia Kassel Trust Dated November 17, 2009, purchased a home in Malibu, California for $3.2 million.

Defendants D’Onofrio Kahn, P.C. and Joseph D’Onofrio (“Defendants”) are attorneys who represented Plaintiffs in that real estate transaction. Plaintiffs allege that Defendants breached their duty to them because Defendants failed to disclose that several structures on the property violated the Environmentally Sensitive Habitat Areas (“ESHA”) law.

On October 2, 2019, Plaintiff Megan Green (“Green”) was deposed by Defendants. At the deposition, Green refused to answer questions related to emails sent between herself, her agents, and the Defendants themselves, claiming she had not waived the attorney-client privilege.

On November 27, 2019, Defendants filed this motion requesting that Green be compelled to answer questions about the emails and for sanctions against Green in the amount of $6,925.

Alternatively, Defendants request to be dismissed from this action.

On January 27, 2020, Plaintiffs filed an opposition.

Both parties allege that the order side failed to properly meet and confer. The Court has reviewed the communications between the parties and finds that both made a good faith effort to meet and confer. However, the parties were unable to come to an agreement as to the issues raised in discovery.

Defendants’ Motion to Compel Plaintiff Megan Green to Answer Questions at Deposition

Standard: “If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (CCP, §2025.480(a).) “If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.” (CCP, §2025.480(i).)

“The [attorney-client] privilege authorizes a client to refuse to disclose, and to prevent others from disclosing, confidential communications between attorney and client. Mitchell v. Super. Ct. (1984) 37 Cal.3d 591, 599. However, “[i]n a lawsuit between an attorney and a client based on an alleged breach of a duty arising from the attorney-client relationship, attorney-client communications relevant to the breach are not protected by the attorney-client privilege.” (Anten v. Super. Ct. (2015) 233 Cal.App.4th 1254, 1256; see Evid. Code, § 958 [which states, “There is no privilege under this article as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.”].)

Plaintiffs argue that the emails are not relevant because they do not mention the ESHA violations. Plaintiffs argue that Defendants breached their duty to them by failing to disclose the ESHA violations. Plaintiffs argue that the emails would only be relevant if they directly mentioned the ESHA violations. Plaintiffs categorize the emails as just general recommendations made by Defendants about the real estate transaction.

Defendants argue that the emails are relevant for the following purposes: “1) whether Plaintiffs’ purchase of the Property “was likely to occur anyway” even if the alleged defect was disclosed; (2) whether Plaintiffs “already knew the problems” with the Property when they closed despite the D’Onofrio Defendants’ alleged failure to disclose; and (3) whether Plaintiffs’ “own misconduct or misjudgment caused” them to purchase the Property with the alleged latent defects.” (Mtn., 12:8-12.) Defendants cite to McDermott, Will & Emery v. Superior Court (2000) 83 Cal.App.4th 378, 383-384, which states that “[g]enerally, the filing of a legal malpractice action against one’s attorney results in a waiver of the [attorney-client] privilege, thus enabling the attorney to disclose, to the extent necessary to defend against the action.”

The Court has reviewed the emails filed under seal. Plaintiffs correctly note that the emails do not directly mention ESHA. However, the Court finds that the emails are relevant to the breach of duty claim. Although they do not mention ESHA, Defendants’ emails do mention that there are numerous deficiencies with the property. Inquiry into this topic may lead to the discovery of admissible evidence. The emails also discuss Green’s eagerness to purchase the property despite Defendants’ concerns about the property. Again, inquiry into this topic may lead to the discovery of the admissible evidence.

The motion to compel answers at the deposition is GRANTED.

Defendants request an award of monetary sanctions against Green pursuant to CCP § 2025.450, subdivision (j), which provide that sanctions shall be imposed against any party who unsuccessfully makes or opposes a motion to compel a deponent to attend deposition and produce documents unless the party subject to sanctions acted with substantial justification or other circumstances would make imposing sanctions unjust.

Defendants indicate that two counsels have worked on this motion. The first counsel spent 5 hours preparing the instant motion, anticipates an additional 3 hours to attend the hearing, and their hourly rate is $350. The second counsel spent 11.5 hours preparing the instant motion, anticipates an additional 5 hours to prepare the reply, and their hourly rate is $250. Defendants’ request a total of $6,925 in sanctions.

The Court finds that Defendants are the prevailing party and will award them $4,000 in sanctions against Green.

Conclusion: Defendants’ Motion to Compel Answers at Deposition is GRANTED. Defendants’ request for sanctions against Green is GRANTED in the amount of $4,000.

Defendants’ Motion to Compel Further Responses and Production of Documents

On April 11, 2019, Defendants served Plaintiffs with Requests for Production (“RFP”) to which Plaintiffs filed timely objections.

On August 27, 2019, Defendants filed the instant motion requesting that the Court compel Plaintiffs to serve verified supplemental responses to RFP No. 33 and to produce all documents responsive to RFP No. 33. RFP in relevant part requests: “All COMMUNICATIONS between YOU and D’ONOFRIO.” On October 8, 2019, Plaintiffs filed an opposition.

Standard: Code of Civil Procedure § 2031.310 allows a party to file a motion compelling further answers to document requests if it finds that the response is inadequate, incomplete, or evasive, or an objection in the response is without merit.

Plaintiffs object to RFP No. 33 on several grounds: attorney-client privilege, the documents are equally available, and the RFP is overbroad.

The “equally available” objection is a limited one and only applicable when a party has to retrieve public records. Bunnell v. Sup. Ct. (1967) 254 Cal. App. 2d 720, 723-724. RFP No. 33 does not request public records and therefore it does not apply to this action. Plaintiffs argue that the request is overbroad because it will “sweep into Defendant’s fishing net confidential, attorney-client privileged documents unrelated to the Property and with no relevance to this action.” The Court disagrees because Defendants as the other party to the communications already have these documents. As noted by Defendants, the communications at issue are only between 4 persons. Accordingly, the motion to compel further responses is GRANTED.

Finally, Plaintiffs request that if the motion is granted some procedure be instituted to preserve the attorney-client privilege against the public and other defendants. The Court’s position is that Plaintiffs should produce all communications requested to Defendants. However, the Court is not persuaded by Defendants’ citations, Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 1359; Wilkinson v. Rives (1981) 116 Cal.App.3d 641, 647-648; Mindys Cosmetics, Inc. v. Dakar (9th Cir. 2010) 611 F3d 590, 599; Yanez v. Plummer (2013) 221 Cal.App.4th 180, that the attorney-client privilege has been waived as to the other defendants. The cited cases are malpractice claims with more than one defendant but they do not really discuss the attorney-client privilege.

Therefore, the Court finds that Plaintiffs have not waived the attorney-client privilege as to the other defendants. The Court wishes to hear from both sides about how to preserve the attorney-client privilege vis a vis the other defendants and the public.

Conclusion: Defendants’ Motion to Compel Further Responses and Production of Documents to Request for Production is GRANTED.