IRION, J.
Plaintiffs Tobi Blatt and Adacas Group, Inc. (Adacas) (together Plaintiffs) sued defendant law firms Frantz Law Group, a Professional Corporation (FLG) and Keegan & Baker, LLP (K&B) (together Defendants) for professional negligence and breach of contract. The trial court determined that, as a matter of law, neither FLG nor K&B had a duty to Plaintiffs and accordingly granted summary judgments in favor of Defendants. On appeal, Plaintiffs contend that, because there are triable issues of material fact as to whether an attorney-client relationship existed between Defendants and Plaintiffs, the trial court erred in granting summary judgments. We disagree and affirm.
"`Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion.'" (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 716-717 (Wilson).) We consider all the evidence in the moving and opposing papers, except evidence to which objections were made and sustained, liberally construing and reasonably deducing inferences from Plaintiffs' evidence, and resolving any doubts in the evidence in Plaintiffs' favor. (Id. at p. 717; Code Civ. Proc., § 437c, subd. (c).)
Blatt owns Adacas, which in October 2007 owned a number of retail clothing stores in northern San Diego County. At that time, wildfires spread through that area, causing billions of dollars of loss and damage to real and personal property — including losses and damages to four of Adacas's stores.
In May 2008, Blatt signed and returned an "Attorney-Client Contingent Fee Agreement" (Contingent Fee Agreement) to the law firm of Macaluso & Associates, APC (M&A).
Almost a month later, Blatt had not heard anything from anyone at M&A. When Blatt telephoned M&A's office, Macaluso's paralegal told her that he could not locate the Contingent Fee Agreement.
In late June 2008, Blatt received a cover letter from the paralegal transmitting a proposed "Retainer Agreement and Lien" (Retainer Agreement). The eight-page Retainer Agreement identified the client as "Tobi Blatt" and the attorneys collectively as FLG, K&B and M&A, and the signature page contained signature blocks for Blatt, FLG (by James P. Frantz), K&B (by Patrick N. Keegan) and M&A (by Todd E. Macaluso).
Blatt signed the Retainer Agreement on June 30, 2008, and had the original hand-delivered to Macaluso's office with copies and a cover note hand-delivered to the respective offices of Frantz and Keegan the next day. Macaluso signed the Retainer Agreement the following week on July 9, 2008, and delivered to Blatt a copy with his signature. Blatt understood that, by signing this new agreement and delivering the original to Macaluso with copies to Frantz and Keegan, Plaintiffs were now represented by M&A, FLG and K&B. In particular, Blatt relied on the above-quoted language from the paralegal's letter, as well as the following language from paragraph 10 of the Retainer Agreement: "This agreement will not take effect, and Attorneys will have no obligation to provide legal services, until Client returns a signed copy of the this agreement."
Blatt received two subrogation notices from counsel for Hartford Casualty Insurance Company.
From mid-2008 through at least 2012, Blatt had periodic in-person and telephonic communications with Macaluso and others at M&A regarding the progress of her and Adacas's fire-related claims. These people reassured Blatt, explaining to her that the claims "were progressing satisfactorily and that, because of the large number of claims being made against San Diego Gas & Electric, it was going to take a long time before [the] claims reached the settlement stage." Consistently, Blatt had heard media accounts "describing the slow but steady resolution of the vast number of fire-related claims that were made against SDGE."
Until at least December 2013, Blatt continued to believe that M&A, FLG and K&B were representing her and Adacas on their fire-related claims based on the following facts: (1) Blatt signed the Retainer Agreement and delivered the original to Macaluso and copies to Frantz and Keegan; (2) Blatt received back a copy of the Retainer Agreement signed by Macaluso on behalf of M&A; (3) Blatt delivered two sets of subrogation notices to Macaluso, Frantz and Keegan; and (4) Blatt was never told that either Macaluso/M&A, Frantz/FLG or Keegan/K&B were not representing her or Adacas.
Then, in early December 2013, Blatt read a news report stating that most of the lawsuits from the 2007 fires had settled. When Macaluso did not take or return any of Blatt's calls, Blatt promptly consulted new counsel who in early January 2014 advised her that the superior court's register of actions did not contain a record of any lawsuit having been filed on her behalf related to the 2007 fires. At this point, Blatt first understood that the statute of limitations had barred Plaintiffs' fire-related claims. From mid-2008 until at least December 2013, Blatt believed that Macaluso, Franz and Keegan had been actively prosecuting fire-related claims on her and Adacas's behalf.
In February 2014, Plaintiffs filed the underlying lawsuit, alleging causes of action for legal malpractice, breach of fiduciary duty and breach of contract against Macaluso, M&A and Does 1 through 25. In November 2014, Plaintiffs amended their complaint to name FLG as Doe 4 and K&B as Doe 5. In January 2015, Plaintiffs filed a first amended complaint, in relevant part naming FLG and K&B as defendants in causes of action for legal malpractice and breach of contract.
FLG and K&B filed separate motions for summary judgment or, in the alternative, for summary adjudication. The principal legal issues raised in each of Defendants' motions were: (1) whether an attorney-client relationship existed between each of the Defendants, on the one hand, and both Plaintiffs, on the other hand; (2) whether the statute of limitations, Code of Civil Procedure section 340.6, subdivision (a), barred Plaintiffs' claims; and (3) whether Adacas, which was never identified as a client in the Retainer Agreement, was a client. Defendants each filed a memorandum of points and authorities, a principal declaration (Frantz on behalf of FLG, and Keegan on behalf of K&B), supporting declarations, a request for judicial notice and a separate statement and lodged numerous exhibits identified in the other documents.
Plaintiffs opposed both motions by filing as to each: a memorandum of points and authorities; declarations from Blatt and her counsel; a request for judicial notice; a separate statement; and evidentiary objections with a related motion to strike. Plaintiffs also lodged exhibits that were identified in the other documents.
In reply, Defendants each filed a memorandum of points and authorities, a supplementary declaration with exhibits, responses to Plaintiffs' separate statement and to Plaintiffs' evidentiary objections (with related motion to strike) and evidentiary objections.
Following oral argument, the court took the matter under submission, ultimately issuing a detailed ruling. The court granted both summary judgment motions on the following grounds: FLG and K&B each met its respective initial burden of establishing the lack of a duty (based on the lack of an attorney-client relationship), since neither FLG nor K&B signed the Retainer Agreement and neither FLG nor K&B had any interaction with Blatt or knowledge of Plaintiffs' fire-related claims; and Plaintiffs did not meet their responsive burden of establishing a triable issue of material fact. In reaching its decision, the court sustained in part and overruled in part the various evidentiary objections (and granted and denied in part the related motions to strike) and denied as moot the alternative motions for summary adjudication.
The court entered separate judgments in favor of FLG and K&B, and Plaintiffs timely appealed from them.
Plaintiffs' principal argument on appeal is straightforward: Based on the evidence and an inference from the evidence presented, M&A, FLG and K&B formed a joint venture to represent a number of fire victims, and Blatt and Adacas are among the victims the joint venture agreed to represent. In addition, Plaintiffs argue that the trial court erred in overruling their objections to Defendants' assertion of the attorney-client privilege in response to Plaintiffs' discovery requests and in denying Plaintiffs' related motion to strike certain portions of Frantz's and Keegan's declarations that Plaintiffs contended were related to the withheld discovery responses.
We review de novo whether the trial court erred in granting the motions for summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) A defendant is entitled to a summary judgment on the basis that the "action has no merit" (Code Civ. Proc., § 437c, subd. (a)(1)) only where the court is able to determine from the evidence presented that "there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law" (id., § 437c, subd. (c)). A cause of action "has no merit" if one or more of the elements of the cause of action cannot be established. (Id., § 437c, subd. (o).)
Thus, a defendant like FLG or K&B has the burden of persuasion that one or more elements of the cause of action at issue "cannot be established." (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 849, 850, 853-854.) To meet this burden, the defendant has the initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. (Aguilar, at p. 850.) If the defendant meets this burden, then the burden of production shifts to the plaintiff to establish the existence of a triable issue of material fact. (Id. at pp. 850-851.)
The court must consider "all inferences reasonably deducible from [the] evidence." (Code Civ. Proc., § 437c, subd. (c).) "An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action." (Evid. Code, § 600, subd. (b).) However, a plaintiff does not meet its responsive burden of establishing a triable issue of material fact with an inference "unless the inference is reasonable. And an inference is reasonable if, and only if, it implies the [fact to be proven] is more likely than defendant's proffered explanation." (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038, italics added (Cucuzza) [discrimination claim]; accord, Aguilar, supra, 25 Cal.4th at p. 857 [to defeat defense motion for summary judgment, plaintiff's inference must establish fact to be proven "more likely than" defendant's fact to be proven] [antitrust claim]; Block v. Golden Eagle Ins. Corp. (2004) 121 Cal.App.4th 186, 191 (Block) ["An inference is reasonable if and only if it implies the existence of an element more likely than the nonexistence of that element."] [insurance bad faith claim].)
Both Defendants argue that there is no express contract by which either of them agreed to represent either Blatt or Adacas. Plaintiffs do not contend otherwise on appeal, acknowledging that neither FLG nor K&B signed the Retainer Agreement or otherwise affirmatively agreed to represent them. Accordingly, Defendants met their initial burden of production by making a prima facie showing of the nonexistence of any triable issue of material fact as to duty. (Aguilar, supra, 25 Cal.4th at p. 850.) The burden of production now shifts to Plaintiffs to establish the existence of a triable issue of material fact as to duty. (Id. at pp. 850-851.)
Plaintiffs argue that based on the evidence and a reasonable inference from the evidence, FLG, K&B and M&A had a joint venture to represent certain fire victims, and Blatt and Adacas were among the victims the joint venture agreed to represent. According to Plaintiffs, once the joint venture was formed, any one of the joint venturers could legally bind the joint venture; thus, M&A's acceptance of the Retainer Agreement was the joint venture's acceptance of the Retainer Agreement. Alternatively, Plaintiffs argue that an inference from the evidence raises a triable issue of material fact as to whether the joint venture, as opposed to just M&A, accepted Plaintiffs as clients.
"From a legal standpoint, [partnerships and joint ventures] are virtually the same." (Weiner v. Fleischman (1991) 54 Cal.3d 476, 482 (Weiner).) A joint venture is a general partnership, typically formed by business entities to undertake a particular project rather than one intended to continue indefinitely. (See ibid.; Chambers v. Kay (2002) 29 Cal.4th 142, 151 (Chambers).
A joint venture, like a partnership, may be formed by the parties' oral agreement or inferred by the parties' conduct and statements; thus, the existence of a joint venture relationship is a question of fact dependent on the intentions of the parties. (Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 525; Weiner, supra, 54 Cal.3d at pp. 482-483; Scottsdale Ins. Co. v. Essex Ins. Co. (2002) 98 Cal.App.4th 86, 91.) "`There are three basic elements of a joint venture: the members must have joint control over the venture (even though they may delegate it), they must share the profits of the undertaking, and the members must each have an ownership interest in the enterprise.'" (Scottsdale, at p. 91.)
Relying on certain evidence in the record,
M&A, FLG and K&B agreed that they would jointly litigate certain cases related to the fires. For example, Frantz testified that the Retainer Agreement accurately "memorializ[ed] the extent of our [FLG, K&B and M&A's] relationship" to act as cocounsel "on a case-by-case basis" for certain clients with fire-related claims. Citing specific provisions in the Retainer Agreement and Frantz's deposition testimony, Plaintiffs suggest that for all clients subject to the Retainer Agreement, the sharing of profits and losses, joint control over the cases and joint ownership interest in the enterprise — i.e., the elements necessary to form a joint venture — are present. We will assume, without deciding or expressing an opinion, that the record supports Plaintiffs' suggestion that (or, at a minimum, raises a triable issue of material fact whether) the Retainer Agreement reflects some of the terms of a joint venture for M&A, FLG and K&B to represent certain clients with claims following the 2007 fires. (See fn. 7, ante.)
From this premise, Plaintiffs present two major arguments: (1) under the Corporations Code, M&A alone could bind the joint venture to represent Plaintiffs, and once the joint venture had the obligation to represent Plaintiffs, FLG and K&B became jointly and severally liable for the obligations of the venture; and (2) in any event, because the joint venture procedures were "largely followed with respect to [P]laintiffs," there is a triable issue of material fact as to whether the joint venture in fact agreed to represent Plaintiffs. Neither argument, however, has merit.
Plaintiffs correctly assert that one joint venturer can bind the joint venture as to joint venture business under Corporations Code section 16301, subdivision (1).
At least one problem with Plaintiffs' analysis is the assumption that Corporations Code section 16301 applies. In order for the agency principles of subdivision (1) to apply to "the execution of an instrument" — i.e., in order for M&A to bind the joint venture (and thus FLG and K&B) to the Retainer Agreement — the execution must be "in the partnership name." (Corp. Code, § 16301, subd. (1), italics added.) Here, because there is no mention of a partnership or joint venture in the Retainer Agreement in the text or the signature block, the agreement was not executed "in the partnership name." (Ibid.)
Without an application of the agency principles provided in Corporations Code section 16301, subdivision (1), the representation of Plaintiffs pursuant to the Retainer Agreement is not a joint venture obligation. Without a joint venture obligation, the joint and several liability provided for in Corporations Code section 16306, subdivision (a) — on which Plaintiffs rely to establish the potential liability of FLG and K&B — does not apply.
Acknowledging that neither FLG nor K&B expressly agreed to represent Plaintiffs pursuant to the partially executed Retainer Agreement, Plaintiffs contend that, because the admissible evidence establishes that the joint venture procedures were "largely followed with respect to [P]laintiffs," there is a triable issue of material fact as to whether FLG and K&B in fact agreed to represent Plaintiffs, even though neither Frantz (on behalf of FLG) nor Keegan (on behalf of K&B) signed the Retainer Agreement. According to Plaintiffs, if Frantz and Keegan actually agreed that the joint venture would represent Plaintiffs, the fact that FLG and K&B never signed the Retainer Agreement does not affect the joint venture's (and thus FLG's and K&B's) responsibility for properly prosecuting Plaintiffs' fire-related claims.
FLG and K&B do not dispute that they agreed with M&A to jointly represent certain clients in prosecuting their claims for fire-related damages, as evidenced by the Retainer Agreement. However, Defendants' position is that neither Blatt nor Adacas is among the clients Defendants agreed to represent jointly with M&A. More specifically, according to Defendants, the evidence confirms that neither FLG nor K&B agreed to represent — jointly with M&A or otherwise — Blatt or Adacas.
Both Frantz and Keegan testified that the Retainer Agreement was only to be used after FLG (through Frantz), K&B (through Keegan) and M&A (through Macaluso) expressly agreed to work together on behalf of a specific client. This was done on a case-by-case basis. Both Frantz and Keegan described a vetting process that each personally conducted on behalf of his respective firm for every potential joint client before he would consider jointly working with the other two firms under the terms of the Retainer Agreement.
Consistently, although Blatt's Retainer Agreement contains separate signature blocks for Blatt, M&A, FLG and K&B, the document contains the signatures of only Blatt (for herself alone) and Macaluso (on behalf of M&A). The signature blocks for FLG and K&B are blank.
Based on the foregoing evidence, we agree with the trial court that Defendants met their initial burden of showing the nonexistence of a triable issue of material fact. Because neither of Defendants agreed to represent either of Plaintiffs, no attorney-client relationship existed between either of Defendants and either of Plaintiffs (and, therefore, no duty owed by either of Defendants to either of Plaintiffs). Thus, we now determine whether Plaintiffs met their responsive burden of establishing the existence of a triable issue of material fact.
We begin with Plaintiffs' acknowledgement that there is no direct evidence that Defendants (or either of them) agreed to represent Plaintiffs (or either of them). Suggesting that "the process" for the joint venture to accept a client was "largely followed" with respect to Plaintiffs, Plaintiffs argue that a jury could reasonably infer — i.e., there is a triable issue of material fact as to whether — Frantz and Keegan agreed that the joint venture would represent Plaintiffs.
According to Frantz and Keegan, for purposes of the joint venture, the procedure to accept a potential client (and thereby create an attorney-client relationship) included the following: Frantz, Keegan and Macaluso would each agree that his respective firm would accept the potential client; the attorney who originated the potential client would send the potential client the Retainer Agreement to review; the potential client would sign and return the agreement to the originating attorney; the originating attorney would sign the agreement and forward it to the other two attorneys for their signatures; once the Retainer Agreement contained all necessary signatures, the originating attorney would provide the client and the other two firms with a fully executed copy.
From this general procedure, Plaintiffs argue that a jury could infer that Frantz and Keegan agreed that the joint venture would represent Plaintiffs based on the following case-specific facts: Macaluso originated Plaintiffs as clients; as the originating attorney, Macaluso sent Blatt the Retainer Agreement to sign; Blatt signed the agreement; Blatt delivered her signed copy to M&A (and FLG and K&B); and M&A signed and returned the (partially executed) Retainer Agreement to Blatt. At oral argument, Plaintiff's counsel emphasized that Macaluso signed and returned the Retainer Agreement (with M&A, FLG and K&B as the attorneys), as opposed to another copy of the Contingent Fee Agreement (with only M&A as the attorney). According to counsel, a reasonable jury could infer that Macaluso would have done so only if the joint venture had agreed to the representation, because the substitution of agreements was against Malcaluso's financial interest: Under the Retainer Agreement, M&A, FLG and K&B would share the attorney fees, whereas under the Contingent Fee Agreement, M&A would have received all attorney fees.
Where, as here, a plaintiff opposes summary judgment by arguing defendant moves for summary judgment and the plaintiff argues that a triable issue of fact is raised by an inference from evidence, the appellate court first determines whether the record contains evidence that supports (1) the plaintiff's inference, and (2) the defendant's explanation. If so, then the appellate court determines whether the plaintiff's inference is "reasonable" — i.e., whether it implies the fact to be proven is more likely than the defendant's explanation. (See Cucuzza, supra, 104 Cal.App.4th at p. 1038; Aguilar, supra, 25 Cal.4th at p. 857; Block, supra, 121 Cal.App.4th at p. 191.)
We have already determined that Plaintiffs' inference is supported by evidence, and we now turn to Defendants' explanation and supporting evidence. As we explain, the inference that Plaintiffs posit is not "reasonable," because it does not more likely imply that Defendants agreed the joint venture would represent Plaintiffs than Defendants' explanation of the facts, discussed post. Accordingly, Plaintiffs did not meet their responsive burden of establishing a triable issue of material fact.
Defendants' proffered explanation is that, when Macaluso's paralegal could not find the Contingent Fee Agreement that Blatt signed and returned in May 2008, the paralegal erred by sending Blatt the Retainer Agreement instead of another copy of the Contingent Fee Agreement without discussing the matter with and receiving authorization from at least Macaluso. In support of their explanation, Defendants rely on the following uncontradicted evidence: (1) neither Frantz nor Keegan (the only individual authorized to accept a wildfire client on behalf of his respective firm) nor anyone else at FLG or K&B ever heard of Blatt or Adacas until service of this lawsuit, and (2) the Retainer Agreement does not contain the signature of either Frantz or Keegan.
Given Defendants' explanation (that Macaluso's paralegal merely sent the wrong agreement), Plaintiffs' inference (that FLG and K&B accepted Plaintiffs as joint venture clients) is simply not reasonable under the appropriate standard. That is because Plaintiffs' inference does not suggest that the existence of an attorney-client relationship "is more likely than [D]efendant[s'] proffered explanation." (Cucuzza, supra, 104 Cal.App.4th at p. 1038; accord, Aguilar, supra, 25 Cal.4th at p. 857; Block, supra, 121 Cal.App.4th at p. 191.)
In their reply brief, Plaintiffs attempt to bolster their position by citing to 11 additional items of evidence that Plaintiffs contend further support the inference that Defendants accepted Plaintiffs as joint venture clients. However, the amount of evidence in support of the inference is not what we consider in determining reasonableness; otherwise, we would be weighing the evidence — which, of course, we may not do (Aguilar, supra, 25 Cal.4th at p. 856). Rather, we consider what Plaintiffs' inference "could show or imply to a reasonable trier of fact" (ibid., italics omitted) and determine whether — in comparison with Defendants' explanation (supported by admissible evidence) — Plaintiffs' proffered inference "implies the [issue to be proven] is more likely than [D]efendant[s'] proffered explanation." (Cucuzza, supra, 104 Cal.App.4th at p. 1038; accord, Aguilar, at p. 857; Block, supra, 121 Cal.App.4th at p. 191.) In this regard, we have already concluded that Plaintiffs' inference does not suggest that the existence of an attorney-client relationship is more likely than an errant transmission of the Retainer Agreement by Macaluso's paralegal to Blatt.
On an independent legal basis, the trial court properly granted summary judgment against Adacas. Because it is not named as a party to the Retainer Agreement, Adacas has the burden to establish that it was an intended beneficiary of the agreement. (Cline v. Homuth (2015) 235 Cal.App.4th 699, 705.) Adacas did not meet its burden here.
The Retainer Agreement does not mention Adacas anywhere. Indeed, the agreement and the signature block identify the "Client" only as "Tobi Blatt," and the two attached conflict of interest forms have signature blocks solely for "Tobi Blatt." Accordingly, neither the joint venturers' general procedure for accepting clients nor the specific Retainer Agreement here contain evidence or an inference from evidence that Frantz or Keegan knew of Adacas's alleged involvement.
Blatt testified that, at the time she received the Retainer Agreement, she noted that it identified the only client as "Tobi Blatt."
However, Blatt's testimony — even liberally construing it as we must (Wilson, supra, 42 Cal.4th at p. 717) — does not contain evidence or an inference from evidence that Frantz or Keegan had any knowledge that Blatt considered Adacas to be a client of the joint venture under the Retainer Agreement. The lack of such evidence is fatal to Adacas's claim, because the standard is not Blatt's intent, but what Defendants understood Blatt's intent to have been. (Lucas v. Hamm (1961) 56 Cal.2d 583, 591 ["the promisor [Defendants] must have understood that the promisee [Blatt] had such intent"].) In part, that is because as a matter of contract law "the undisclosed intentions of the parties are, in the absence of mistake, fraud, etc., immaterial." (Brant v. California Dairies (1935) 4 Cal.2d 128, 133.)
Finally, Plaintiffs' operative complaint does not place at issue whether Adacas was an intended beneficiary of Blatt's retention of the joint venture. To the contrary, Plaintiffs affirmatively allege that, pursuant to the Retainer Agreement, "Blatt and Adacas retained Macaluso, [M&A, FLG and K&B] to jointly represent them in connection with losses they sustained. . . ." Under well-recognized summary judgment procedure, Defendants met their initial burden by directing their evidence and arguments to the claims as raised in the operative complaint. (Metromedia, Inc. v. City of San Diego (1980) 26 Cal.3d 848, 885 ["On motion for summary judgment the pleadings define the issues"], revd. on other grounds, Metromedia, Inc. v. San Diego (1981) 453 U.S. 490.) Plaintiffs' suggestion in opposition to Defendants' motions that Adacas was an intended beneficiary of the Retainer Agreement is not a substitute for an amendment to the complaint (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493) — for which Plaintiffs never asked leave of court.
In support of FLG's motion, Frantz testified that for each case in which the three firms agreed to represent a client, a retainer agreement "was always signed by the client and each of our three firms," and "[a] fully executed copy of the retainer agreement was provided to each firm and to the client." Similarly, in support of K&B's motion, Keegan testified: "for every case in which K&B agreed to jointly represent a client, retainer agreements were signed by the client, Mr. Macaluso, Mr. Frantz, and me"; and "[M&A], FLG, and K&B would enter into signed retainer agreements when they agreed to jointly represent a client."
In the trial court, Plaintiffs filed objections to (and moved to strike) the above-quoted statements — and many more — from both Frantz's and Keegan's declarations on the basis that FLG and K&B refused to allow discovery regarding clients that FLG and K&B acknowledged were jointly represented by the three firms. In particular, Plaintiffs wanted copies of the retainer agreements for all jointly represented clients. Plaintiffs argued that Defendants' refusal to supply the requested discovery responses has "stiff-arm[ed] [P]laintiffs' efforts to conduct confirmatory discovery." More specifically, Plaintiffs' argument is that Defendants should not be allowed to use the attorney-client privilege first as a sword (to support their statements that in each case in which they agreed to jointly represent a client with M&A, all three firms would sign the retainer agreements) and then as a shield (to preclude discovery of the terms of those same retainer agreements).
Finding that, under the circumstances, Defendants were not asserting the attorney-client privilege both as a sword and as a shield, the trial court overruled Plaintiffs' objections and denied their related motions to strike.
We begin our analysis with the understanding that "`"[t]he privilege which protects attorney-client communications may not be used both as a sword and a shield."'" (People ex rel. Herrera v. Stender (2012) 212 Cal.App.4th 614, 647.) That is because of "`the inherent unfairness'" of allowing the holder of the privilege either (1) to assert a claim that the attorney cannot adequately dispute or defend without disclosing confidential materials provided by the holder of the privilege (e.g., ibid.), or (2) to assert the privilege in discovery and then waive the privilege at trial (e.g., Xebec Development Partners, Ltd. v. National Union Fire Ins. Co. (1993) 12 Cal.App.4th 501, 569).
Generally, the trial "court's evidentiary rulings made on summary judgment are reviewed for an abuse of discretion." (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169.) That said, in Reid v. Google, Inc. (2010) 50 Cal.4th 512, our Supreme Court expressly left open the question of whether evidentiary rulings in connection with summary judgment motions are reviewed under a de novo or an abuse of discretion standard. (Id. at p. 535.) Under either standard, the trial court here did not err in overruling Plaintiffs' evidentiary objections as to (and denying Plaintiffs' motion to strike) portions of Frantz's and Keegan's declarations.
First, in the evidentiary objections and motions to strike that Plaintiffs filed in opposition to the summary judgment motions, Plaintiffs did not present any evidence in support of their position. Thus, the trial court did not have a factual record — e.g., Plaintiffs' discovery requests and Defendants' objections — on which it could have granted the requested relief. As a corollary, Plaintiffs have not directed (and cannot direct) us to substantial evidence in the record that suggests, let alone establishes, trial court error.
Second, there is no indication that, in response to Defendants' assertion of the attorney-client privilege during discovery, Plaintiffs attempted to meet and confer or to file a motion to compel. Without such efforts, there is no telling whether a compromise could have been reached, whether the information could have been obtained elsewhere, whether the information could have been provided in a redacted form, or whether the signature pages of the other clients' retainer agreements are in fact privileged.
Third, Plaintiffs did not seek a continuance of the hearing on the summary judgment motion in order to obtain the discovery elsewhere or to otherwise test the validity of Defendants' assertion of privilege. (See Code Civ. Proc., § 437c, subd. (h).)
Fourth, even if we overlook the above-described procedural deficiencies, substantively Defendants did not assert the attorney-client privilege as a sword. Defendants did not affirmatively assert the privilege and then later waive it; nor could they, since they are not the holders of the privilege asserted. (See Evid. Code, § 953 [client is "`holder of the privilege'"].) Likewise, Defendants did not first introduce into evidence confidential information and then assert the attorney-client privilege as a shield to providing related confidential information. Rather, Frantz and Keegan initially described the process by which their firms accepted joint clients with M&A and later refused to provide discovery responses that they contended were subject to the attorney-client privilege held by third parties. At best, the discovery Plaintiffs allegedly sought would have supplied a basis on which to impeach Frantz's or Keegan's testimony,
Finally, we are precluded from reversing the judgments based on the allegedly erroneous admission of evidence, because Plaintiffs have not established how any such error here "resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13; Evid. Code, § 353, subd. (b); see Code Civ. Proc., § 475 [for reversal, error must be "prejudicial"].) That is to say, Plaintiffs have not suggested, let alone demonstrated, that the motions for summary judgment would have been denied had Defendants' testimony regarding the process of accepting joint clients not been considered. Irrespective of the challenged testimony, Frantz and Keegan testified unequivocally that Plaintiffs were not clients of FLG or K&B — which was sufficient to meet Defendants' initial burden and to shift to Plaintiffs the burden of establishing the existence of a trial issue of material fact.
For the foregoing reasons, the trial court did not err in overruling Plaintiffs' objections to (or denying Plaintiffs' motion to strike) Frantz's or Keegan's testimony regarding the retainer agreements for clients other than Plaintiffs whom M&A, FLG and K&B agreed to jointly represent.
The judgments filed December 4, 2015, in favor of Frantz Law Group, A Professional Corporation, and Keegan & Baker, LLP, are affirmed. Frantz Law Group, A Professional Corporation, and Keegan & Baker, LLP, are entitled to costs on appeal.
NARES, Acting P. J. and O'ROURKE, J., concurs.
