ARDON v. CITY OF LOS ANGELESAppellant’s Opening Brief on the MeritsCal.May 12, 2015 COPY SUPREME COURT S223876 | FILED IN THE SUPREME COURT OF THE MAY 12 2015 STATE OF CALIFORNIA Frank A. McGuire Clerk fos, ESTUARDO ARDON, ON BEHALF OF HIMSELF AND Dep¥tyCRC OTHERS SIMILARLY SITUATED 8.25(b) Plaintiff and Respondent, Vv. CITY OF LOS ANGELES Defendant and Petitioner PETITIONER CITY OF LOS ANGELES’ OPENING BRIEF OnReview of a Decision of the Second District Court ofAppeal Case No. B252476 Affirming a Judgment of the Superior Court of the State of California for the County of Los Angeles, Lead Case No. BC363959 Honorable Lee Smalley Edmon,Judge Presiding [Related to Case Nos. BC406437; BC404694; and BC363735] Michael G. Colantuono (SBN 143551) Noreen S.Vincent (102935) *Holly O.Whatley (160259) . Beverly A. Cook (68312) AmyC.Sparrow (191597) OFFICE OF THE CITY COLANTUONO, HIGHSMITH ATTORNEY & WHATLEY, PC 200 North Main Street, Suite 920 300 S. Grand Avenue, Suite 2700 Los Angeles, California, 90012 Los Angeles, California 90071-3137 Telephone: (213) 978-7760 Telephone: (213) 542-5700 Facsimile: (213) 978-7714 Facsimile: (213) 542-5710 noreen.vincent@lacity.org hwhatley@chwlaw.us Attorneys for PETITIONER CITY OF LOS ANGELES $223876 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA ESTUARDO ARDON,ON BEHALF OF HIMSELF AND OTHERSSIMILARLY SITUATED Plaintiff and Respondent, Vv. CITY OF LOS ANGELES Defendant andPetitioner PETITIONER CITY OF LOS ANGELES’ OPENINGBRIEF On Review of a Decision of the Second District Court ofAppeal Case No. B252476 Affirming a Judgment of the Superior Court of the State of California for the County of Los Angeles, Lead Case No. BC363959 Honorable Lee Smalley Edmon,Judge Presiding [Related to Case Nos. BC406437; BC404694; and BC363735] Michael G. Colantuono (SBN 143551) Noreen S.Vincent (102935) *Holly O.Whatley (160259) Beverly A. Cook (68312) Amy C. Sparrow (191597) OFFICE OF THE CITY COLANTUONO,HIGHSMITH ATTORNEY & WHATLEY, PC 200 North Main Street, Suite 920 300 S. Grand Avenue, Suite 2700 Los Angeles, California, 90012 Los Angeles, California 9007 |-3137 Telephone: (213) 978-7760 Telephone: (213) 542-5700 Facsimile: (213) 978-7714 Facsimile: (213) 542-5710 noreen.vincent@lacity.org hwhatley@chwlaw.us Attorneys for PETITIONER CITY OF LOS ANGELES TABLE OF CONTENTS ISSUES PRESENTED FOR REVIEW.........eccccesescescecsecereeecsecseeeatenseeesenceeseseneteseeas 1 INTRODUCTION 0... ceccceeececeeecensecerscesceseeceeeseeeecscceesssacencesseseseesseeesessceeeeseeeeseeesenstees 2 STATEMENT OF THE CASE ..0.....ecccccccessssesseseesceseecececescecnsesensecaeeeseeseeeseasseesseacessasenaes 4 A. Trial Court Proceedings.............cccccesccsseseceecesseeceeseeseseseseeessesensesesseeeesennecens 4 B. Court of Appeal Proceedings. ............eiseeeeeceeseceereeeeeerersececsseeeesesteceeeeeeneess 5 STATEMENTOF FACTS....eccccececesscssesececeeeceecneseesceseesecceseesesenevaceseesrsanseneseseeseeeesaeeas 6 STANDARDOF REVIEW.......cesceecscsssssceseceecccesceseeeceececeecscesceacescesseecaseeeestessseeeeeseees 10 LEGAL ARGUMENT. ...occcccecectesscccesseessersceceescescesesceecsnesacesscaccesaeeaceeseessaceeeenesseeeas 11 I. THE PUBLIC RECORDS ACT DOES NOT TRUMP - THE ATTORNEY-CLIENT PRIVILEGE OR ATTORNEY WORK PRODUCTDOCTRINE...eeeeeeeecseeeeeeaeereees 1] A. Government Code Section 6254.5 Does Not Abrogate the Attorney-Client Privilege Upon Inadvertent DiSClOSULE .............eccceeeeeeseeceseeececcetesecencesccesessecetseeseeeceeaeestceessaeeesnseeeeeenaes 1] B. Section 6254.5 Is Intended to Prevent Selective Disclosure, Not to Penalize Inadvertence...........cececceeeceeeeeeeeesetereseeeees 18 C. Reading Government Code Section 6254.5 to Abrogate Privilege is Unsupported by Case Law..........ecceescessseeseesseeeeees 21 D. This Court Should Harmonize the Public Records Act with the Evidence Code .0.......ccceeccccsssscsscecseseeeseeetecsseeseesssseeceeesesenseeeseeseess 24 E. That Courts Oversee Public Records Act Requests Only When Suits Arise Does Not Support Abrogation Of Privilege...eeeeeescesececeecetescesscesetecseeeceeessceseesceesesesenssecseeseeeeeseeees 27 F. The Lower Courts’ Conclusions Here Require Attorneys to Handle All Public Records Act Requests ...........e:cseesseeeees 30 II. ONLY THE HOLDER OF A PRIVILEGE CAN WAIVEIT...eeeeeeeees 31 A. There Was No Authorized Waiver of Attorney-Client Privilege Here ......... cee cesscsteeseesecnecssceseesesceceeceseessersneesaeeseeeeeeneseeaeesseeeess 32 B. Nor Was There Authorized Waiver of Work Product PLOteCtlONS 000... eeceseceeeesecceseecececneeecssecseecescnetessceessersessereceeseeseneeeeseeeseneeees 34 If. ARDON’S COUNSEL FLOUTED ETHICAL DUTIES2...eeeee 39 A. State Fund Made Clear Counsel’s Duties 1n 1999.00.00...ccceceeceseeeeeeee 39 B. State Fund Is Not Limited to DisCOVETY............:ccceccecseesseessecesseeneeeneeaeees 40. C. An Attorney Who Violates State Fund is Subject to Disqualification............c:sccsssscseccessececcesceeseeeecceesceseeseeseeesesseeeeeeeeesseneeeeaes 44 D. —Ardon’s Counsel Violated State Fund and Should be . Disqualified...........cccccccccsseesecsseceseceesseeseeceesencecesseseeseeesaeeessecseeseaeessecessaeeees 45 TV. CONCLUSION0. eeccccccccsccccccescenseessceesseeensecseseesessseessceesesceeeeueeeuessasecsecesseeesnees 49 TABLE OF AUTHORITIES Page(s) Federal Cases Elkins v. United States (1960) 364 U.S. 206 wo. eeceecceesessesecseceecescecessesseseesssseacsceseseeaesacesesaeeensceateaeeeneees29 In re Grand Jury Proceedings (8th Cir. 1972) 273 F.2d 540 oeececcesseeseecenececesceeesscescesesscscesceeecseseeaeseeseesaseeeaeseteneneeaeenss36 Hickmanv. Taylor (1947) — 329 ULS. 495 ooo eeesccssesescececescecsceeceseessecsseneeseeessesessesessseesaceerscesseenessceenes37 Mapp v. Ohio (1961) 367 ULS. 643 occ eececcssecsecsceesceesseecesscessceeeneesseesseesseessesseeseeeeteeee 26, 28, 29 Romerv. Evans (1996) S17 US. 620 oeeeeeeccescesseeeecesecsccecsesececcesseeeescesacsessacseesceeseseeseeeteeseesseeenss22 California Cases Aetna Casualty & Surety Co. v. Superior Court (1984) 153 CalApp.3d 467.0... ..eceeeccessecceseececeeeeceteeeseeasseeeneeeessesseceeerseceuaceneease36 Alaska Exploration, Inc. v Superior Courtrt (1988) 199 CalApp.3d 1240.00...cc eecccccccececseeesegeecesesseesenseeecceeeseneeneeeneeseeneeaes35 Alkow v. State Bar ofCal. (1952) 38 Cal.2d 257... ecescssceseesecssesecssnecesceeseseeceeesseeseesesseesecesceusteeenesaceneentens4] American Mut. Liab. Ins. Co. v. Superior Court (1974) 38 CalApp.3d 579... cccecscesssesessccseccscescteceeeseseeeesesarseeesseesacenseeeeseeeeaees38 Ardonv. City ofLos Angeles (2011) 52 Cab.Ath 241 occececcceceeeseceesecevsnesecsecscecsesseeesseeseaeesesacseseeeeeaseneeereess4 Black Panther Party v. Kehoe (1974) AD CalApp.3d 645 oo.eccccecescceesccssctecsceeeeesetsceseceseseeseeeees 19, 20, 21, 22 Exparte Brady (1924) 65 CalApp. 345.0... cccccsccssseceseccscsseceesnesacesnecssceeereneserecsuseceesneseasessesseeenes22 il Clark v. Superior Court (2011) 196 Cal.App.4th 37.0...eeeececsene cesseeseersecesscceseenesenseneseneseeseceeatens passim Coito v. Superior Court (2012) 54 Cal.4th 480 w..cececcccccccsecccsssescsssessssscsecssssecsessscsecacsecseeseseeseeseseestenseseanes36 Costco Wholesale Corp. v. Superior Court (2009) AT Cal4th 725 oeeeecscscssecceeeencesee sesseseseceecenecnsaeseeeacseaceasenseesceecsesseeeesees28 County ofSanta Clara v. Superior Court (2009) 170 CalApp.4th 1301.00.00...vesececeseesesssseceeacecceccsseesssercesseeseceesacets 22, 23 Crawford v. State Bar ofCal. (1960) 54 Cal.2d 659.0...eeecsesseecsueeeesuireeecenscngensnnessceteneey seseeeceneneeeeeseeesees4] People ex rel. Dept. ofCorporations v. SpeeDee Oil Change Systems, Inc., supra (1999) 20 Cal.4th 1135 ooo cccccessecsscesceesecsesssnesseseseessesssecseseseeesensensenesensenners 10 Fellows v. Superior Court (1980) 108 Cal.App.3d 55.0... cecesescssesccssesseeseeseeseceasssscseeceeseeesseseesseeeeasenses36 Gately v. Cloverdale Unified School Dist. (2007) 156 CalApp.4th 487.00...cccecccscecesseesesseceesssersseessceceeceeecsssensseeessensesres 14 Haas, Cohler & Munter v. Superior Court (1985) 172 Cal.App.3d 264 00... .cecceccececeseessesesesereeeessceseesesceseseceneaceceeeeeseees 35, 38 Masonite Corp. v. County ofMendocino Air Quality | ManagementDist. (1996) 42 Cal.App.4th 436.00... ecessccsesccsseesesseseessneecsecsseneeseeecasenseeeeeeseets 23, 24 Mitchell v. Superior Court (1984) 37 Cal.3d 591eeeeceeeeecscescereee secesesseteneeeeenenees veseececeneeececeeee 16, 28, 42 National Steel Products Co. v. Superior Court (1985) 164 CalApp.3d 476......cccccssscesessessetessssesessessecseseescssessesesssssessseasesseeeeas36 O’Mary v. Mitsubishi Electronics America, Inc. (1997) 59 CalApp.4th 563.0...cceeeeeecscsecccesescsesseeeersereeseseesessesseseracseeseseeees 15, 24 People v. Boehm (1969) 270 CalApp.2d 13.0... eccccseccesseeecssescsssesessssecsesecsessesenssceaeeseceseaesseneeetes36 Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807 oo.eeeeeessseecesseeecesceseecseseseeceseesseeseseseaseesseeeseeeees passim Lil Roberts v. City ofPalmdale (1993) 5 Cal.4th 363 wo.ccccceccsscessccsecsscecseeccecessessesesescecsseseesesseeeaeeeneesesseseeeees 3, 33 Rumac v. Bottomley (1983) 143 Cal.App.3d 810...ceescccceneessceesececceesceeeeseecscsscerscsserseceeeenees36 San Diego County v. California Water & Tel. Co. (1947) 30 Cal.2d 817...ccescesscecceeceseceseseeceeescsecsseassccacsacsssacessrsesscsessseesseeees34 Schatz v. Allen Matkins Leck Gamble & Mallory LLP (2009) 45 Cal.4th 557 oo.ececccccsseeeseecssenccessnecsescesecesesssecerscseceesosscesessesesereneeres21 State ofCalifornia v. Superior Court (1981) 29 Cal.3d 240...cesseceecessecececeeceeseeceecsersecserscesessseseseeeraeseaeeseceeeseaceesees34 State Compensation Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644.00... ccccceccsseccsscessceceeecceesesseceseetsssecereseeeseteners passim California Constitution Cal. Const., Article 1, § 7 o..c..cccccccccccsssssescsesscecesseececeeseeesaecenesaceseetenensseeteaes23 California Statutes Civ. Code § 3426.2 oocecccesccsscensessscecssneeececensesecesesetcscecsesesecessesscesesseaeenseeteeeesseeeess29 Code Civ. Proc. § 904.1, subd. (2)(6) oo. ceecceecessseesseesesseseecteeesneeeeeeeeseseeseeeeeeeeeneeenseeeees 5 § 2018.010 occeecssccsseececessnessesssescssseesseeeessessesecesenscessteeseesetesenes35 § 2018.030 oo. eeeccccscessccesseccesesseeceeseessecsseesceesseesenseseecessneeeeaseeeeeaes 11, 35 § 2030.260 oo... ececccscesscssscsssccecssceeescesseesecseeseeeceeseessceseeecseeseneestesetsneeseeees25 § 2031.260 0.cesecccessscessecccesscsneeessessecssecesseecsesnssceeececcseseseaseteseeeseses25 § 203 1.285 ooo ecccccessecsseeessceccessesesseeeesessscsseeeceseeseeseseeescesseeseneesesers 17 § 2033250 0. eccesscsscscesecssceeesecesscccessesecsecssecesecsecaceasescusecsseeeesseerseeeaneess25 Evid. Code SNDeecccccecesssseeseeetecssecsseeceesseseacensesseaesesesseeesseseesnneseneseneesseeee passim § G15, Subd. (a) eeececcesecesscneeenssessecseesceeeraesenesseeaeeeessesenecseceeeeseseeenes28 § 954. ccccccsssssssevevevevessessesseessvesesssssnssscessesaseessssessesseseceusessevsessseetee 11, 15 iv Gov. Code § 6250 oo.eeecccesceeseececesceseceeceescersceecesesscccesseecesseaceseeacesseeseeerestesteneeses 1,31 § 6253, SUDA. (C)eeeeeeeeeeseeeeseceeescesnecseesceseeeetoeecscecsseecsacesesessecenaceeeseees25 Sairecccevetereesceceresececeeerersatecseersteeseessees passim § 6258 oo. eeeeccsccceccssessecceecensecceeenecerseceecerseseseeaeeeseeeseseseesneteacesseeaeeceeserseeeres25 § 6259 ooo eeecescctessecseseecececsescecseceecaecsesseeseecenecstesscaeeseseeneeseeteeseeeeeeneesee25 ISSUES PRESENTED FOR REVIEW The Supreme Court granted the City of Los Angeles’ (“City”) Petition for Review on March 11, 2015. The Petition raised the followingissues: 1. Does inadvertent disclosure of privileged documents by a clerk responding to a Public Records Act, Government Code sections 6250 et seq. (“Public Records Act”), request waive attorney-client privilege and work productprotections, whenthe holdersof the privileges (the City Council and the City’s attorneys, respectively) were neither notified of the request nor had opportunity to review the documents before disclosure? 2. Does a municipal clerical employee have authority to waive the attorney-client privilege and the protection of the work product doctrine? 3. Is disqualification appropriate when counsel breaches ethical standards requiring an attorney whoreceives inadvertently disclosed, privileged documentsto refrain from examining the materials any more than is necessary to ascertain privilege and to immediately notify the sender? RespondentEstuardo Ardon’s (“Ardon”) Answerstated no other issues for consideration, and the order grantingreview stated no limitations on the issues presented. INTRODUCTION In a published opinion (“the Opinion”), the Court of Appeal held the Public Records Act limits the force of the attorney-client privilege and the work-product doctrine such that inadvertent disclosure of privileged materials by a clerical employee responding to a Public Records Act request waives those protections, even though inadvertent disclosure by an attorney responding to an identical discovery request does not. That Opinionflies in the face of decades-long authority that protects privileged material from mistaken disclosure. At its essence, the Court of Appeal decision declares that the public’s right to know under the Public Records Act trumps public agencies’ attorney-client and work productprivileges. It does so without plain authorization by statute or case law. This unprecedented conclusion that a public agency’s privileges may be waived bya clerical error will harm both public agencies and the Californians they serve. To maintain these vital privileges under this decision, governments must treat public records requests as defensively and with the same application of expensive legal services as they do discovery requests. This will inevitably slow and complicate disclosure of public records and benefit neither the public fisc nor the transparency objective of the Public Records Act. Additionally, such a rule will discourage creation of privileged materials in the first instance, impairing 2 counsel’s ability to communicate with and to defend public agency clients and thoseclients’ capacity to understand andfollow the law. rs As Justice Mosk wrote for a unanimous Court: A city council needs freedom to confer with its lawyers confidentially in order to obtain adequate advice, just as does a private citizen who seeks legal counsel, even though the scope of confidential meetingsis limited by this state’s public meeting requirements. (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 380 [neither Public Records Act nor open-meeting statute abrogates attorney-client privilege applied to counsel’s memoregarding land use matter to be heard at public hearing] (“Roberts’).) Although both lowercourts declined to harmonize the Public Records Act with statutes and case law establishing privilege, this Court need not. Rather, this Court should take this opportunity to clarify that public agencies’ privileges are no less than those of private parties and that agencies are not held to a standard of perfection the law recognizes private parties cannot attain. Human erroris inevitable, permitting the public to capitalize and leverage such error to the detrimentof public agencies is not. The City respectfully requests this Court reverse and orderthe privileged material at issue returned to the City, prohibit plaintiff’s counsel _from distributing it or using it in any way and disqualify them from this action. STATEMENT OF THE CASE A. Trial Court Proceedings This Court has seen this case once before. (Ardon v. City ofLos Angeles (2011) 52 Cal.4 241 [Government Claims Act permits class action claims against local governments]. It challenges the City’s telephoneusers tax (“TUT”) in effect before March 2008. This appeal, however,involvesonly whetherArdon’s counsel may flout the City’s attorney-client, attorney work product and deliberative processprivileges by using the City’s defense counsel’s own written analysis of this very case to the City’s disadvantage. WhentheCity learned its privileged materials had been inadvertently disclosed to opposing counsel, it sought their return. (1 CT 155, 213-215 [Whatley Decl., { 12 and Exh. 9 thereto].) When opposing counsel refused, the City filed its Motion to Compel Return of Privileged Material and to Disqualify Counsel of Record (“Motion to Compel”). (1 CT 121.) 1 The Motion to Compel seeks to require the return of privileged materials and to disqualify Ardon’s counsel to ensure the City is not disadvantaged by opposing counsel's familiarity with the City’s counsel’s own strategic evaluation of the case. On hearing on the Motion to Compel, the trial court requested supplemental briefing on the legislative history of the Public 1“CT”refers to the Clerk’s Transcript. 4 Records Act and the application of Professional Rules of Conduct, Rule 2-100 [“Communications With a Represented Party”]. (July 1, 2013 Reporter's Transcript at p. 17.) At a second hearing,thetrial court adoptedasits final order a tentative ruling denying the Motion to Compel. (October 25, 2013 Reporter’s Transcript at p. 14; 2 CT 474-484.) The City timely appealed pursuant to Code of Civil Procedure section 904.1, subdivision (a)(6), allowing immediate appealof an order denying a motion to disqualify counsel. B. Court of Appeal Proceedings The Second District affirmed in a published opinion (“Opinion”). ? In so doing, the Court of Appeal heldthat a provision of the Public RecordsAct preventing selective disclosure of public records to favored persons trumps public agencies’ privileges. The Court of Appeal adopted thetrial court’s conclusionthat: [ujnlike litigation discovery, where inadvertent disclosure is expressly protected from waiver by statute (See Evid. Code § 912; Code Civ. Proc., § 2031. 285), any privileged documentdisclosed pursuant to the [Public Records Act] is waived as to the world ... . (Opinionat p. 4 [emphasis added].) * The Court of Appeal’s opinionis attached as Exhibit 1 pursuantto California Rule of Court 8.520(h). The City timely petitioned for review, which this Court granted. STATEMENT OF FACTS Ardonclaims an Internal RevenueService’s (“IRS”) 2006 decision set forth in Notice 2006-50 to exclude charges for long distance service based only on time — as opposed to time and distance — from the Federal Excise Tax (“FET”) base required a similar reduction in the base of telephony subject to the City’s TUT. (1 CT 22-23 [Corrected First Amended Class Action Complaint, {I 6-9.) The City, of course, disagrees. Ardonserveda first request for production of documents.(1 CT 152 [Declaration of Holly O. Whatley (“Whatley Decl.”) at ¥ 2].) He sought, amongotherthings, a variety of City documentsrelating to the FET, the IRS Noticesreflecting that agency’s changed interpretation of the FET, and communications regarding the application of the TUT to long distance telephone service charged only by duration of the call. (1 CT 161.) Ardon served a second request for production of documents, seeking documents in the City’s possession concerning the TUT authored by the League of California Cities (“League”) — of which the City is a member. (1 CT 153 [Whatley Decl. at 7 3]; 1 CT 168.) Ardon simultaneously served on the League of California Cities a deposition subpoena for production of business records seeking records related to the FET; the amendmentof any tax on telephone service to eliminate any reference to the Internal Revenue Code, including the FET; the IRS’ notices that announcedits changed interpretation of the FET; the application of any tax to long distance telephone service charged only on the basis of the duration of calls; and League communications on behalf of or at the direction of the City relating to any of these. (1 CT 153 [Whatley Decl. at J 4]; 1 CT 174-175.) | Judge Anthony J. Mohr granted the League’s and the City’s motions to quash. (1 CT 153 [Whatley Decl. at { 5]; 1 CT 177.) He concluded the material Ardon sought was protected by the attorney- client privilege and the work-product doctrine.(Id.) The City produced documents in response to Ardon’s two requests for production of documents, but withheld 27 documents described in a privilege log provided to Ardon’s counsel(“Privilege Log”). (1 CT 154 [Whatley Decl. at J 7]; 1 CT 195-201.) Morethan five years after the City claimed the privilege as detailed in that Privilege Log, Ardon’s counselfirst disclosed to the City that she had obtained a numberof those very attorney-client privileged documents in response to a Public Records Act request.(1 CT 154 [Whatley Decl., { 8]; 1 CT 203.) In her letter, Ardon’s counsel claims to possess three documents the City withheld as privileged: 1. September 18, 2006 Letter from Chief Assistant City Attorney, David Michaelson, to City Administrative Officer, William Fujioka (“Michaelson Letter”). This letter analyzes the Impact of IRS Notice 2006-50 on the City’s TUT — the core issue in this case — and City options, including defense arguments to claims identical to Ardon’s. The Privilege Log identified this as “Letter prepared by legal counsel” at numbers3 and 21, and the City designated it as protected by the attorney-client, attorney work product and deliberative process privileges.(1 CT 154-155 [Whatley Decl., [J 8, 9]; 1 CT 206.) The letteritself bears the legend atop page one “ATTORNEY-CLIENT PRIVILEGED AND CONFIDENTIAL COMMUNICATION.”(1 CT 154-155 [Whatley Decl., { 9].) . June 27, 2006 Memorandum from the League to California City Attorneys (“League Memo”). This memorandum, an attachment to the Michaelson Letter, analyzes the possible impacton local utility user taxes of the IRS Notice 2006-50. The Privilege Log identified this as “Research memosentto legal counsel” at number4, and the City designatedit as protected by the attorney-client, attorney work product and deliberative process privileges. (1 CT 154-155 [Whatley Decl., T1 8, 10]; 1 CT 196.) . June 1, 2006 Memorandum from City Administrative Officer, William Fujioka to City Attorney, Rockard J. Delgadillo (“Fujioka Memo”). This memorandumto the City Attorney bore the subject line, “IRS Notice Regarding Federal Excise Tax.” The Privilege Log identified this document at number2, and the City designated it as protected by the attorney-client, attorney work product and deliberative process privileges. (1 * CT 154-155 [Whatley Decl., I] 8, 11].) Ardon’s counsel admits she has an undated copy of this document(identifiable byits file number, WTF:JSS:16060007C). (1 CT 155 [Whatley Decl., { 11); 1 CT 211.) The City repeatedly demanded Ardon’s counsel return these privileged documents. (1 CT 155-156 [Whatley Decl., Tf 12, 14]; 1 CT 213-215; 1 CT 222-223.) She refused, disclaiming any legal or ethical duty to do so despite the authorities cited in the City’s demands.(1 CT 155-156; 1 CT 213-215 [Whatley Decl., {J 11, 13 and Exh. 9 thereto]; 1 CT 211; 1 CT 218-220.) The City Council never waived the attorney-clientprivilege as to these documents. (1 CT 150-151 [Declaration of Noreen Vincent (“Vincent Decl.”), 1 4, 5].) The City’s Chief Administrator never waived privilege as to these documents. (1 CT 147-148 [Declaration of Miguel Santana[Santana Decl.”], {J 3-5].) Nor did he authorize anyoneelse to doso. (Id.) Finally, the City Attorney’s office never waived its work product rights in the Michaelson Letter or the other two documents. (1 CT 151 [Vincent Decl., J 6].) STANDARD OF REVIEW Generally, a trial court’s decision on a disqualification motion is reviewed for abuse of discretion. If the trial court resolved disputed factual issues, the reviewing court should not substitute its judgment for the trial court’s express or implied findings supported by substantial evidence. When substantial evidence supports the trial court’s factual findings, the appellate court reviews the conclusions based on those findings for abuse of discretion. However, ... where there are no material disputed factual issues, the appellate court reviewsthe trial court’s determination as a question of law. In any event, a disqualification motion involves concerns that justify careful review of the trial court's exercise of discretion. (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc., supra, (1999) 20 Cal.4th 1135, 1143-1144 [internal citations omitted].) Nofacts are disputed here. Accordingly, this Court’s review is de novo. 10 LEGAL ARGUMENT I. THE PUBLIC RECORDS ACT DOES NOT TRUMP THE ATTORNEY-CLIENT PRIVILEGE OR ATTORNEY WORK PRODUCT DOCTRINE A. Government Code Section 6254.5 Does Not Abrogate the Attorney-Client Privilege Upon Inadvertent Disclosure Twoprovisions of the Public Records Actarein issue. Government Code,section 6254, subdivision (k) states: Except as provided in Sections 6254.7 and 6254.13, this chapter does not require the disclosure of any of the followingrecords: (k) Records, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege. Thus, the Public Records Act expressly allows public agencies to bar access to public records subject to any statutory privilege. This includesthe attorney-client privilege under Evidence Codesection 954, as well as the work-product protection of Code of Civil Procedure section 2018.030. Government Codesection 6254.5 states, in relevant part: 11 Notwithstanding any other provisions of law, whenever a state or local agency discloses a public record which is otherwise exempt from this chapter, to any member of the public, this disclosure shall constitute a waiver of the exemptions specified in Sections 6254, 6254.7, or other similar provisions of law. Rather than harmonize these provisions with the Evidence Codesections they reference, the lower courts here determined unintentional disclosure of privileged material in responseto a Public Records Act request waives the privilege. Noprior authority has everso held. Indeed, California courts have ruled time and again that inadvertent disclosure of privileged information doesnotresult in waiver under the Evidence Code, but instead places an ethical obligation on counselto refrain from exploiting an adversary’s inadvertence. (E.g., State Compensation Ins. Fund v. WPS,Inc. (1999) 70 Cal.App.4th 644, 654 [hereinafter, “State Fund”].) In State Fund, the plaintiff sent defendant's counsel several documents identical to those provided in discovery. However, the plaintiff also inadvertently sent 200 pages of formsentitled, “Civil Litigation Claims Summary,” marked “attorney-client communication / attorney work product.” (State Fund, supra, at p. 648.) The word “confidential” was printed around the perimeter of thefirst page of each form.(Ibid.) Whenplaintiff's counsel 12 discovered his error and demandedreturn of the documents, as here, opposing counsel refused, claiming waiver. The Court of Appeal disagreed, citing Evidence Codesection 912, which provides: Except as otherwise provided in this section, the right of any person to claim a privilege provided by Section 954 (lawyer-client privilege) ... is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. State Fund held: “Based on the language of Evidence Code section 912, we hold that ‘waiver’ does not include accidental, inadvertent disclosure of privileged information bythe attorney.”(Id. at p. 654.) Later decisions extend State Fund to inadvertent disclosure outside formal discovery. This Court addressed the issue in Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807 [“Rico”]. There, thetrial court determinedthe privileged notes at issue—an attorney’s notes of his discussion with an expert — had been disclosed “through inadvertence” of a court reporter at a deposition.(Id. at p. 812.) Still, the court found no waiver. Similarly, in Clark v. Superior Court (VeriSign) (2011) 196 Cal.App.4th 37 [“Clark”] the client took privileged materials from his employer even before he retained counsel, and no one ever accused 13 ‘his subsequent counsel of obtaining those materials inappropriately or in discovery.(Id. at 42-44, 49.) Again, the court found no waiver. (Id. at pp. 54-56.) The lower courts’ conclusions here directly conflict with all these authorities — as well with as the Public Records Act's incorporation of Evidence Codeprivileges. Quoting thetrial court, the Court of Appeal stated here that “disclosure of documents under the [Public Records Act] is not the same asdisclosure in the course of litigation discovery.” (Opinion, p. 4.) However, as discussed above, the State Fund rule is not limited to the discovery context. Moreover, the lower courts’ reasoning here ignores that subdivision (k) of Government Codesection 6254 references Evidence Codeprivileges, indicating intent that courts harmonize the Public Records Act with the Evidence Code, which courts read to maintain privilege despite inadvertent disclosure. (Gately v. Cloverdale Unified School Dist. (2007) 156 Cal.App.4t 487, 494 [“Statutory provisions that are in pari materia, i.e., related to the same subject, should be construed togetheras one statute and harmonizedif possible.”].) Disclosure of non-privileged materialis compulsory under the Discovery Act and the Public Records Act alike, and both except materials privileged under the Evidence Code. Asthe Fourth Appellate District noted: 14 [D]iscovery is coercion. The force of law is being brought upon a person to turn over certain documents. Inadvertent disclosure during discovery by nostretch of the imagination shows consent to the disclosure: It merely demonstrates that the poor paralegal or junior associate who was lumbered with the tedious job of going through voluminous files and records in preparation for a document production may have missed something. [Plaintiff] invites us to adopt a “gotcha” theory of waiver, in which an underling’sslip- up in a document production becomesthe equivalentof actual consent. We decline. The substance of an inadvertent disclosure under such circumstances demonstrates that there was no voluntary release. (O’Mary v. Mitsubishi Electronics America, Inc. (1997) 59 Cal.App.4th 563, 577 [“O’Mary’’].) Nothing in the Public Records Act evidencesintent to displace the attorney-client privilege or work product doctrine. Indeed, the statute is expressly to the contrary. Government Codesection 6254, subdivision (k) incorporates Evidence Codeprivileges, including the attorney-client privilege defined by its section 954. Cases interpreting waiver of that privilege have never found inadvertent disclosure to constitute waiver. Protection of attorney-client privilege — which the California Supreme Courthasheldascritical 15 to our system of jurisprudence for public and private parties alike — requires thatrule. [T]he fundamental purpose behindthe privilege is to safeguard the confidential relationship between clients and their attorneys so as to promote full and open discussion of the facts and tactics surrounding individual legal matters. [Citation.] In other words, the public policy fostered by the privilege seeks to insure “the right of every person to freely and fully confer and confide in one having knowledgeof the law, and skilled in its practice, in order that the former may have adequate advice and a proper defense.” (Baird v. Koerner, supra, 279 F.2d at p. 629.) Although exercise of the privilege may occasionally result in the suppression of relevant evidence, the Legislature of this state has — determined that these concerns are outweighed by the importance of preserving confidentiality in the attorney-client relationship. As this court has stated: “The privilege is given on groundsof public policy in the belief that the benefits derived therefrom justify the risk that unjust decisions may sometimes result from the suppression of relevant evidence.” [Citation.] (Mitchell v. Superior Court (1984) 37 Cal.3d 591, 599-600.) 16 This reasoning applies here. Protection of the privilege from inadvertent disclosure should be noless in the context of Public Records Act requests than elsewhere. The different rationale the lower courts adopted here would mean the public has moreright to access governmental records than a court’s power to demand relevant evidence. That unprecedentedrule is unlikely to be the Legislature’s intent. The Legislature and the courts have already © weighedthe costs of maintaining the privilege — even in instances of inadvertent disclosure — and decidedits benefits outweigh its costs. The lower courts here rely on Evidence Codesection 912’s claimed express protection of privilege from waiver via inadvertent disclosure and the perceived silence of the Public Records Act on the point. (Opinionat p. 4 [Exh. 1 hereto]). However, Evidence Code section 912 provides no exception for inadvertent disclosure; no statute governs waiver of the work-product doctrine upon disclosureto third parties. Moreover, Code of Civil Procedure section 2031.285is limited to the production ofelectronically stored information and does not depend upon whether disclosure was inadvertent or deliberate. As detailed above, the protection of privileged material from waiver by inadvertent disclosurearises from case law construing Evidence Codeprovisions cross-referenced in the Public Records Act. Theseflawsjustify reversal. 17 B. Section 6254.5 Is Intended to Prevent Selective Disclosure, Not to Penalize Inadvertence By expressly incorporating Evidence Codeprivileges, the Public Records Act is unambiguousas to the protection of the attorney-client privilege. Evidence Code provisions regarding waiver control over the lower courts’ more general waiveranalysis here. However, even if the Court concludes the Public Records Actis ambiguous,its legislative history demonstrates the City’s interpretation is correct. Whenthestatute was addedto the Public Records Act in 1981, _ its sponsor, Senator Barry Keene, issued no fewer than four press releases trumpeting its prohibition of selective disclosure. Two stated SB 879 would: [p]rohibit selective withholding of government documents. Once officials showed documents to any members of the public, they would become public records available to everyone. (2 CT 401 [Declaration of Holly O. Whatley in Supportof City’s Supplemental Brief (“Supplemental Whatley Decl.”), {¥ 2, 3]; 2 CT 402-403 [Mar. 24, 1981 press release]; 2 CT 404405 [Apr.28, 1981 press release].) The other twopressreleases stated the bill would: strengthen ... the Public Records Act by ... [bJanning the selective withholding of government documents. (2 CT 401 [Supplemental Whatley Decl., 1] 4, 5]; 2 CT 406-408 [July 18 6, 1981 press release]; 2 CT 409-411 [Sept. 9, 1981 press release].) Three staff reports also demonstrate this was the concern of whatis now Government Codesection 6254.5. An Assembly Committee on Governmental Organization staff report states a principal featureofthe bill is a “ban onselective withholding of government documents.” (2 CT 401 [Supplemental Whatley Decl., { 6]; 2 CT 412-414 [Aug.11, 1981 staff report].) A Senate Committee on Governmental Organization staff report reiterates that: [t]he measure prohibits selective withholding of government documents, by requiring that once an official has shown a specific documentto any person,it must become publically available. (2 CT 401 [Supplemental Whatley Decl., { 7]; 2 CT 415-417 [Apr.28, 1981staff report.) A third report repeats this language verbatim.(2 CT 401 [Whatley Decl., J 8]; 2 CT 418 [Aug. 11, 1981 staff report].) The Legislature’s concern with “selective” disclosure necessarily presumestheinitial disclosure was deliberate. An official with authority to do so must knowingly andintentionally show a documentto a memberof the public before waiver can applies under Government Codesection 6254. 5. Inadvertent disclosure, by its very nature, is neither deliberate nor selective. Moreover, when the Legislature enacted Government Code section 6254. 5 (adopted by Stats. 1981, c. 968, p. 3680, § 3), it was presumed to know of Black Panther Party v. Kehoe (1974) 42 . 19 Cal.App.3d 645. The plaintiffs there demandedinspection of complaints involving abusive practices by licensed collection agencies, and the Bureau of Collection and Investigative Services acknowledgedit routinely disclosed those complaints to the collection agencies to permit their responses. (Id. at p. 655.) Although the court concluded the complaints fell within an exemption to the duty to disclose under the Public Records Act stated in Government Code section 6254(id. at p. 654), it rejected the Bureau’s contentionit could share these complaints with collection agencies while denying accessto plaintiffs: The Public Records Act denies public officials any powerto pick and choose the recipients of disclosure. When defendants elect to supply copies of complaints to collection agencies the complaints become public records available for public inspection. (Id. at pp. 656-657 [emphasis added, fn. omitted].) Asbylegislative history discussed above indicates, Government Codesection 6254.5 codified this holding, and governmentofficials cannot rely upon the exemptions provided by section 6254 to supporta selective disclosure of public records. The lower courts here mistakenly reasonedthat, if the City could reclaim privileges for the inadvertently disclosed documents, it could achieve the selective disclosure Government Codesection 6254.5 prohibits. However, this, too, is error. In Black Panther the 20 Bureau of Collection and Investigative Services deliberately disclosed exempt material to collection agencies. It purposely waivedprotection from disclosure. In inadvertent disclosure cases like this, however, no deliberate disclosure occurs. Los Angeles neverselectively disclosed privileged material to one while denying access to another. Rather, the City consistently intended to maintain the privilege. The three documents werereleased inadvertently to precisely the person the City would never have favored — its adversary in high-stakeslitigation. Noris there evidence the Legislature adopted Government Codesection 6254.5 to penalize inadvertence and to abrogate privilege. Given that the attorney-client privilege is fundamental to our legal system, a court should demand very compelling evidence that the Legislature intended to reduceits scope. (E.g., Schatz v. Allen Matkins Leck Gamble & Mallory LLP (2009) 45 Cal.4th 557, 573 [presumption against implied repeal].) Such evidenceis absenthere, andthe available legislative history reveals section Government Code 6254.5 was adoptedto address a very different issue — governmentfavoritism via selective disclosure of public records. C. Reading Government Code Section 6254.5 to Abrogate Privilege is Unsupported by Case Law As discussed above, Government Codesection 6254.5 codified Black Panther Party v. Kehoe, supra, 42 Cal. App. 3d 645, which states “{t]he Public Records Act denies public officials any power to pick 21 and choosethe recipients of disclosure.” (Id. at p. 656 [emphasis added].) The case was plainly concerned with government favoritism. . Similarly, in County of Santa Clara v. Superior Court (2009) 170 Cal.App.4th 1301 (“Santa Clara”), the trial court found the County had sold graphic information system data to at least three private purchasers.(Id. at 1329.) When a non-profit group sought the same information via a public records request, the county asserted an exemption to the Public Records Act’s usualrule of disclosure. The Court of Appeal affirmedthetrial court’s conclusion that the County could not withhold the data. It observed: [dJisclosure to one member of the public would constitute a waiver of the exemption requiring disclosure to any other person whorequests a copy. (Id. at 1321-1322, quoting 86 Ops. Cal. Atty. Gen 132, 137 (2003) internal citation omitted.) Thus, the case applies when government intentionally discloses records to some, but notall, which the Public Records Act forbids. This result reflects the broadly shared social value that governmentplays a neutralrole in society and does not favor some overothers. (E.g., Romer v. Evans (1996) 517 U.S. 620, 633 (“A law declaring that in generalit shall be moredifficult for one groupofcitizens thanforall others to seek aid from the government is itself a denial of equal protection of the laws in the mostliteral sense.”); Ex parte Brady (1924) 65 Cal.App. 345, 347 (statute regarding 22 operation of courts in counties of the “first class” improperly granted privileges to citizens of such counties that were denied citizens of others); Cal. Const., art. I, § 7 (“A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.”).) But nothing in Santa Clara addresses inadvertent disclosure of privileged documents in response to a Public Records Act request, nor holds such inadvertent disclosure waivesprivilege. The lower courts here nevertheless rely on Masonite Corp.v. County ofMendocino Air Quality ManagementDist. (1996) 42 Cal.App.4th 436 (“Masonite”), in which the plaintiff failed to designate certain trade secrets when it provided documents to the defendantDistrict. (2 CT 478-479.) However, that case applies trade secret law, which does not exempt inadvertently disclosed materials, but instead focuses on whethertrade secrets have been so designated whentheyare turned over to governmentagency. There, the plaintiff's failure to designate its trade secrets was dispositive, and the District was not permitted to withhold undesignated documents in responseto a Public Records Act request. However, the holding there was entirely dependent upon trade secret law and hasno bearing on the Legislature’s intent under Government Code sections 6254.5 [barring selective disclosure] and 6254, subdivision (k) [incorporating Evidence Codeprivilege into the Public Records Act]. To the contrary, just as Masonite recognizes 23 that the Uniform Trade Secrets Act is “persuasive” in interpreting trade secret disclosures under the Public Records Act(id. at p. 451), this Court should recognize that Evidence Code privileges — including their protection against inadvertent waiver developed by case law — are “persuasive” in construing Government Code section 6254.5. (State Fund, supra, 70 Cal.App.4th 644, 654 [“Based on the language of Evidence Code section 912, we hold that ‘waiver’ does not include accidental, inadvertent disclosure of privileged information by the attorney”].) Therefore, to the extent Masonite applies here, it stands for the proposition that the Public Records Act should be harmonized with privilege law — here, the Evidence Code, which does not recognize waiver under these circumstances. D. This Court Should Harmonize the Public Records Act with the Evidence Code As noted above, section 912 of the Evidence Code does not recognize waiver by inadvertent disclosure that occurs under compulsion.(State Fund, supra, 70 Cal. App. 4th 644, 654 [no waiver by inadvertent disclosure]; O’Mary, supra, 59 Cal. App.4th at p. 577 [rejecting “gotcha” theory of waiver on inadvertent disclosure under compulsion].) The lower courts’ failure here to harmonize the Public Records Act with the Evidence Codecreates needless inconsistency between the two. The compulsion to respond to Public Records Act requestsis no less than in discovery. Indeed, the Public Records Act requires 24 agencies to respond to such requestsin just 10 days (Govt. Code, § 6253, subd.(c)) comparedto the 30 days typical for written discovery and document requests. (Code Civ. Proc., §§ 2030.260, 2031.260 and 2033.250.) Moreover, the importance of prompt disclosure under the Public Records Act — andthe attendant risk of inadvertent disclosure — would seem to argue more persuasively for a rule against waiver by inadvertentdisclosure here than in discovery. Failure to timely satisfy request under the Public Records Act risks suit and attorneys’ fees awards. (Gov. Code, §§ 6258- 6259.) Thus, there would seem to be more compulsion underthat statute than in the context of ordinary discovery. Allowing the Public Records Act’s ban onselective disclosure to elevate inadvertent disclosure to intentional waiverof privilege — as the lower courts did here — produces anomaloussituations. For example, under Evidence Codesection 912, privilege withstands inadvertent disclosure, and counselareethically obliged to refrain from exploiting privileged information.If the privilege has been waived underthe Public Records Act, however, documents available to the public under the Public Records Act remain privileged under the Evidence Code and Rules of Professional Conduct. Protection for the privilege that this Court has described as fundamentalto ourjustice system cannottolerate such inconsistency. 25 Courts have refused such double standardsforcore rights. For example, the United States Supreme Court interpreted the exclusionary rule for illegally seized evidence uniformly between the federal governmentand state government. (Mapp v. Ohio (1961) 367 U.S. 643, 657 [eliminating rule allowingstate officers to present “on a silver platter”illicitly obtained evidencefor use in federal court.) The Supreme Court of the United States noted that, the absence of a uniform standard obliging both state and federal officers to protectcitizens’ right against unlawful search and seizure — would “encourage disobedience to the Federal Constitution”, renderingthe right illusory. (Ibid.) Here too, different rules for waiverof privilege in discovery and as to Public Records Act requests would encourage gamesmanship as occurred here. Additionally, low-level municipal clerks will be held to a standard of perfection — a standard to which courts do not hold lawyers. Although governments could use more highly trained (and therefore expensive) staff to hand records requests, they are so many that doing so would require a dedication of resources beyond the means of many agencies. The Public Records Act applies equally to the smallest water district in Modoc County as well as to Los Angeles County. It must be construedsoas to realistic apply to the very different resources available to each. Were the result reached by the lowercourts here to stand, a loophole in privilege law would invite precisely the mischief that 26 occurred here — the City’s own defense analysis of this very caseis silently obtained by Ardon’s counsel, whoreadsandrelies on it for months before disclosing to defense counselthat she hasit. The fruit of the City’s lawyers’laboris silently, secretly, used to its own detriment. This oughtnotto be the law. E. That Courts Oversee Public Records Act Requests Only When Suits Arise Does Not Support Abrogation of Privilege The lowercourts here express concern that courts “lack of control” over inadvertent disclosure outsidelitigation justifies less protection for privilege in the context of requests under the Public Records Actthanin litigation. This concern, however,is overstated. First, on the facts of this case, the trial court did have control because the parties werein litigation. The City’s motion to compel Ardon’s counsel]to return the privileged documents and to disqualify his counsel proves the point. Second, courts protect privilege from inadvertentdisclosure in settings that involve neither discovery nor requests under the Public Records Act.In Rico, the privileged notes at issue were obtained “through inadvertence” of a court reporter at a deposition.(Rico, supra, 42 Cal. 4th at p. 812.) This Court nevertheless protected the privilege. Similarly, in Clark, the privileged material was taken by the plaintiff even before he retained counselor filed suit. (Clark, supra, 196 Cal.App.4th at 42-44, 49.) Again, the court hadlittle 27 problem protecting the privilege. (Id. at pp. 54-56.) Third, that protecting privileges may result in “inconveniences” and may be moredifficult*whenlitigation is not already pending are insufficient to construe section 6254.5 to allow _ inadvertence to defeat privilege. Again, this Court recognized in Mitchell that protecting privilege can conceal relevant information, but nevertheless determined that the attorney-client and other privileges merit protection because they are so fundamental to our system of justice. The Legislature reasoned similarly whenit adopted Evidence Codesection 915, subdivision (a), to prohibit judges from demandingto inspect attorney-client privileged material in camera. (See also, Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 739 (“[A] court may notorder disclosure of a communication claimed to be privileged to allow a ruling on the claim of privilege ....”).) Similar balancing is required in Fourth Amendmentreview of searches and seizures. Courts recognize that excluding evidence obtainedin illegal searches means thetrier of fact will never hear relevant evidence, but our Constitution demandsnoless. As the U.S. Supreme Court wrote in Mapp: There are those who say, as did Justice (then Judge) Cardozo, that under our constitutional exclusionary doctrine ‘(t)he criminal is to go free because the constable has blundered.’ People v. Defore, 242 N.Y. at page 21, 150 N.E. at page 587. In somecases this will 28 undoubtedly be the result. But, as was said in Elkins [v. United States (1960) 364 U.S. 206], ‘there is another considerdtion—the imperative of judicial integrity. 364 U.S. at page 222, 80 S.Ct. at page 1447. (Mapp, supra, 367 U.S. at p. 659.) Finally, to the extent that inadvertent disclosure of privileged material in response to a Public Records Act request may occur _ outside the context of pendinglitigation, public agencies have methods to protect the material from further and repeated disclosure just as, for example, do ownersoftrade secrets that have been stolen (Civ. Code, § 3426.2) or persons whoseprivate information has been obtained without consent. For example, the public agency could file suit seeking injunctive relief to recover the privileged material and to preventits disclosure. That this option entails initiating a suit, as opposed to seekingrelief in an already pending suit, does not support ignoring the protection in the Public Records Act context. Rather, thepublic agency should be able to determinefor itself whether the material at issue warrantsthefiling of a suit to maintain its protection. And, importantly, this optionis available no matter if the person that obtained the inadvertently disclosed material was a lawyerornot. Most fundamentally, that courts protect privilege on inadvertent disclosure in litigation which they supervise would seem to argue for more protection of privilege in non-litigation 29 settings, rather than less. The social value of privilege warrants those protections necessary to maintain it. If immediatejudicial supervision cannot do so withoutthe benefit of the State Fund rule, then such a rule is even more necessary in othersettings further from the bench. F. The Lower Courts’ .Conclusions Here Require Attorneys to Handle All. Public Records Act Requests Like many larger local eovernments, the City receives hundreds of Public Records Act requests annually. If the lower courts’ rule prevails, Los Angeles will have two options to comply with the Public Records Act: do without attorney-client and work productprivileges in litigation — includingclass action disputes that involve potentially tens of millions of dollars, such as thecase at bar — or task attorneys to respond to Public Records Act requests. That attorneys are as prone to human erroras others meansthis will reducetherisk to City privileges, but will not eliminateit. Thetrial court was of the view that “Ms. Rickert used the Public Records Act for exactly the purpose it was intended.” (2 CT 482 [emphasis added].) If so, the law inviteslitigants to ignore standardsof professional courtesy and instead to press for advantage under the Public Records Act. Indeed, such request might becomethe standard of care, compelling all wholitigate with public agencies to see what inadvertence might benefit their clients. Sensible agencies will apply what resources they can to staff 30 records request with lawyers, inevitably raising the cost and slowing the flow of information from governmentto the governed. Thisis plainly not the goal of the Public Records Act. (Gov. Code, § 6250 [“access to information concerning the conduct of the people's businessis a fundamental and necessary right”].) Harmonizing the Public Records Act and the Evidence Codeas the City urges strikes a better balance of competing public goals than the lowercourts reachedhere. ll. ONLY THE HOLDEROFA PRIVILEGE CAN WAIVEIT The lower courts here refused to apply another long-standing rule — that only the holder of a privilege may waiveit. (See Opinion at p. 7.) Rather, the Court of Appeal feared a rule against waiver by inadvertence would swallow the rule against selective disclosure. (Ibid.) This ignores the fundamental capacity of our legal system to distinguish inadvertence from intentional acts. As Oliver Wendell Holmesputit a century ago, “Even a dog knowsthe difference between being kicked and being stumbled over.”? Courts can and should distinguish inadvertence from intentional acts underthe Public Records Act as they do in so many otherareas of law. * “Early Forms of Liability,” Lecture I from The Common Law. (1909) whoreceives privileged information in response to a Public Records Act request is not boundbythe ethical duties articulated by State Fund, an attorneyis. “Attorneys must conform to 52 CT 253. 40 professional standards in whatever capacity they are acting ina particular matter.” (Crawford v. State Bar of Cal. (1960) 54 Cal.2d 659, 669; Alkow v. State Bar of Cal. (1952) 38 Cal.2d 257, 263.) Simply put, the law does not allow attorneys to pick and choose when to be boundby the professional rules of ethics. Ardon mistakenly arguesthe rule applies only if the privileged material is disclosed by litigation counselorstolen.First, in Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, though one party claimedthe privileged notesat issue werestolen,thetrial court determined they were obtained “through inadvertence.” (Id. at p. 812.) That inadvertence wasnotoflitigation counsel, but by a "court reporter during a deposition.(Ibid.) Therefore, Rico involved neither theft nor disclosure by litigation counsel. This Court nevertheless found the receiving attorney bound by State Fund to immediately notify opposing counsel. Similarly, in Clark v. Superior Court (VeriSign) (2011) 196 Cal.App.4th 37, a client took privileged materials from his employer before retaining counsel or suing, and no one accused his subsequently retained counsel of obtaining those materials inappropriately. (Id. at 42-44, 49.) However, even though counsel obtained privileged documents from his client — not by theft or inadvertence by counsel in discovery — hestill bore the ethical duty to immediately notify opposing counsel he had obtained them.(Id. at pp. 54-56.) Again, the court imposed the ethical duty on the 41 attorney without regard to how heobtained privileged documents. Thus,the ethical obligation attaches regardless of how an attorney obtains privileged material. State Fund an “obligation of an attorney receiving privileged documents dueto the inadvertence of another,” and did notlimit its rule either to theft or the discovery context. (State Fund, supra, 70 Cal.App.4th at 656-657.) A different rule would incentivize lawyers to devise ways to “stumble across” privileged material outside discovery as Ardon’s counsel did here. Under Ardon’s theory,if his counsel found a privileged City documentin a coffee shop near City Hall, she could secretly useit to her client’s advantage (as she did here), because opposing counsel did not inadvertently disclose it and she did notsteal it. Such a duty is so narrow as to be meaningless. The Penal Codeis sufficient to address theft. Case law hadneverlimited State Fund to discovery. The rule Ardon’s counsel seeks has nobasis in authority.It is not, and cannot be, the law. Rather, the focus is properly on the fact that opposing counsel has received privileged materials, not how heor she doesso. This ethical obligation is an aspect of the attorney-client privilege, a central tenet of our justice system. As this Court declared in Mitchell, supra, 37 Cal.3d at 599-600, the strong public policy to protect attorney-client privilege refutes Ardon’s argumenthis counsel may circumventtheir duty to honor opposingparty’s privilege. Indeed, public policy demandsthe opposite. 42 That conclusion is particularly compelling here, given that Ardon’s counsel used a Public Records Act requestthat she could easily have copied to counsel for the City but did not. This was a deliberate end run aroundthe City’s assertions of privilege in discovery that procured the City’s defense analysis of this very case — documents Judge Mohr easily recognized as privileged when he granted the City’s and the League’s motions to quash.¢ (1 CT 153 [Whatley Decl., 1 5]; 1 CT 177 [Order Granting Motion to Quash].) 6 In support of its motion to quash, the League submitted the Declaration of Patrick Whitnell, its general counsel. (2 CT 320 [2007 Declaration of Patrick Whitnell (“2007 Whitnell Decl.”)].) He notes that the responsive League documents included “a legal analysis,” created by League counsel, “on utility user tax issues that is shared on a limited basis only with attorneys representing potentially affected cities through the Listserve.” (2 CT 321 [2007 Whitnell Decl., { 3].) These documents were before Judge Mohr whenheissued his March 28, 2008 order granting the League’s and the City’s motions to quash. Moreover, Ardon’s counsel admits she has the document identified as Document No. 4 on the City’s Privilege Log and _ described there as a “Research memosentto legal counsel.” (2 CT 251.) This is the very documentthat Mr. Whitnell referencedin his 2007 declaration. (2 CT 313-314 [Declaration of Patrick Whitnell (“2013 Whitnell Decl.”), {Jf 3-5]; 2 CT 333 [Declaration of Tiana J. Murillo, { 3].) 43 C. An Attorney WhoViolates State Fund is Subject to Disqualification An attorney whoobtains attorney-clientprivileged material andfails to comply with the rule State Fund is appropriately disqualified. (E.g., Clark, supra, 196 Cal.App.4th 37.) There Clark sued his former employer, VeriSign, and produced several privileged VeriSign documents in discovery. (Id. at p. 43.) Many were prominently marked “Attorney—Client Privileged,” “Prepared at Request of Counsel,” and/or “Highly Confidential.” VeriSign’s counsel demanded Clark’s counsel return the privileged documents. While Clark’s counselinitially agreed to return certain documents, like Ardon’s counselhere he ultimately neither returned nor destroyed them.(Id. at p. 43-44.) The Court of Appeal ruled Clark’s counsel was obligated not to review the privileged documents more than necessary to determine they were privileged and to immediately notify VeriSign’s counsel he had them. [O]nce the examination showed a document had been transmitted between an attorney representing VeriSign and either an officer or employee of VeriSign, that examination would suffice to ascertain the materials [were] privileged, and any further examination would exceed permissible limits. (Id. at p. 53.) The Court of Appealaffirmedthetrial court’s 44 conclusion Clark’s counsel exceeded thoselimits, in part, because he examined each documentin sufficient detail to categorize them by subject matter. (Id.) Accordingly, the Court found disqualification of Clark’s counsel was not an abuseof discretion. (Clark, supra, 196 Cal.App.4th at p. 55.) State Fund also applies when an attorney obtains work product. (Rico, supra, 42 Cal.4th 807.) Rico’s counsel Johnson obtained defense counsel Yukevitch’s strategy notes under unconfirmed circumstances. (Id. at p. 812.) A week later, Johnson used those notes during deposition of a defense expert. When Yukevitch realized Johnson had used the only copy of those notes at the deposition, he demandedtheir return and movedto disqualify plaintiffs’ legal team and their experts because they had accessto and hadused his work product.(Id. at p. 812-813.) Thetrial court disqualified Rico’s counsel and this Court affirmed. This Court endorsed State Fund and confirmedthat it applies to work product, groundingthe rule in an attorney’s obligation to “respect the legitimate interests of fellow membersof the bar, the judiciary, and the administration ofjustice.”(Id. at p. 818 [citation and internal quotation omitted].) D. Ardon’s Counsel Violated State Fund and Should be Disqualified Disqualification is mandated here. These facts do notcreate simply an appearance of impropriety or accidental review of 45 inconsequential information. Ardon’s counsel madea Public Records Act request undisclosed to City’s counsel, obtained thereby defense counsel’s written strategy for defendingthis véry case and then persistently refused to return it even when the City’s counsel informedherof the controlling law. State Fund’s rule is objective. Courts consider what would have been apparent to reasonably competent counselin the position of the attorney to be disqualified. (Rico, 42 Cal.4th at pp. 818-819.) No reasonable attorney in Ardon’s counsel’s position could conclude the City Council and City Attorney knowingly and intentionally disclosed to her, on a Public Records Act request she did not disclose to them, privileged analysis of the legal issues which animatethis case. It was a windfall too good to be true and obviously inappropriateto retain. First, Ardon’s counsel obtained confidential analysis of the legal issues in this very suit. The Michaelson Letter — prepared by one of the most senior lawyers in the City Attorney’s office — analyzes the impact of IRS Notice 2006-50 on the City’s TUT and the litigation the City anticipated it would provoke. On the City Attorney’sletterhead, it bears prominent notations reading “ATTORNEY-CLIENT PRIVILEGED AND CONFIDENTIAL COMMUNICATION.”(1 CT 154-155 [Whatley Decl., 17 8, 9].) Second, counsel indisputably reviewed the confidential documents beyond what was minimally necessary to determine their privileged nature; their review wassufficient to correlate the 46 documentsto those listed in the City’s privilege log. (See 1 CT 154- 155 [Whatley Decl., I 8, 11]; 1 CT 206; 1 CT 211.) This conduct disqualified counsel in Rico and Clark. (Rico, supra, 42 Cal.4th atp. 819; Clark, supra, 196 Cal.App.4th at p. 53 [“[counsel]...examined the content of each documentin sufficient detail to allow [him] to ‘determine their subject matter for categorization’]). Plainly Ardon’s counselviolated their ethical duties under State Fund and Rico and the lower-courts erred to allow them totry this case. Third, even a cursory examination would reveal these documents had been sent between an attorney and client. The Michaelson Letter enclosed the League Memoanalyzing the possible impact of the FET issue on local utility user taxes. Moreover, the Fujioka Memo wasaddressedto the City Attorney. (1 CT 155. [Whatley Decl., {{ 10, 11].) Fourth, it is equally apparent that the privileged documents were provided inadvertently. In addition to being labelled as confidential, privilegedor attorney work product, the City designated them as such on a privilege log and withheld them from production during discovery. (1 CT 154 [Whatley Decl., J 7]; 1 CT 194 [Privilege Log].) Indeed, it was Ardon’s counsel whofirst identified the documents in her possession as thoselisted on the privilege log. (1 CT 206-207.) Plaintiff's counsel — havinglitigated this case since 2006 — is also aware of the City’s position regarding the League-generated documents and,indeed, the City successfully 47 quashed Ardon’s subpoenaserved on the League. (1 CT 153 {Whatley Decl., { 5]; 1 CT 177 [Order Granting Motion to Quash].) Accordingly, Ardon’s counsel well knew they hadprivileged material and of the City’s intentto protect that privilege. They cannotcredibly claim they thought production in response toa Public Records Act request of which they gave the City’s attorneys no notice was a deliberate waiverof privilege the City had strenuously defended. Instead, counselplay “gotcha” and refuse to surrendertheir windfall, arguing not only that they may use the documents, but use them as a basisto strip privilege fromrelated materials. They are willfully blind to their ethical obligations and evidence no respect for the legitimate rights of other parties to this case which invoke the powerof courts in a democratic society to seek not advantage, but justice. Disqualification is appropriate here. Furthermore, no showing of injury need supporta ruling of disqualification. Disqualification is “proper as a prophylactic measure to prevent future prejudice to the opposing party from information the attorney should not have possessed.” (Clark, supra, 196 Cal.App.4th at p. 55.) Indeed, a showing of injury would require the injured party to revealing precisely how inadvertently disclosed, privileged information had prejudiced its case — drawing a road map for further harm. In any event, the City has been damaged. No “brain eraser” can allow Ardon’s counsel to un-learn the City’s defense analysis of 48 this case. If they are permitted to maintain this action, they could not help but use that information to informlitigation strategy and to advance Ardon’s case. Their illicit knowledge will aid them in selecting and presenting arguments, particularly in their forthcoming motionto certify a plaintiff class here. They have advantage in selecting issuesto try, settle and appeal. In short, counsel's wrongful study of the City’s privileged analysis will underminethe integrity of the judicial system if they are allowed to try this case. Nothing short of disqualification can ensure the City’s wrongfully acquired privileged materials are not used againstit. The City respectfully urges this Court to reverse and to orderthetrial court to grant the disqualification order it refused. IV. CONCLUSION Accordingly, the City respectfully requests that this Court to reverse and orderthetrial court to vacate its order and to grant the City’s motion for an order compelling the return of privileged material and to disqualify Ardon’s counsel. DATED: May11, 2015 Respectfully submitted, COLANTUONO, HIGHSMITH & WHATLVf HOLLY O.WHATLEY Attorneys for Appellant and . Defendant City of Los Angeles 49 CERTIFICATE OF WORD COUNT Counsel of Record herebycertifies that pursuant to Rule 8. 204(c)(1) of the California Rules of Court, the enclosed brief of Appellant and Defendant City of Los Angeles is produced using 13- point Palatino Linotypeincluding footnotes and contains approximately 11,354 words, which is less than the total words - permitted by the Rules of Court. Counsel relies on the word countof the computer program used to preparethisbrief. DATED: May11, 2015 COLANTUONO, HIGHSMITH & WHATLEY, PC MhsgMLS HOLLY O. WHATLEY ° Attorneys for Appellant and Defendant City of Los Angeles CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX ESTUARDO ARDON, | 2d Civil No. B252476 ; (Super. Ct. No. BC363959) Plaintiff and Respondent, (Los Angeles County) v. CITY OF LOS ANGELES, Defendant and Appellant. The City of Los Angeles (City) appeals the trial court's order denyingits motion to compel Estuardo Ardon to return privileged documents it turned overto his counsel] pursuant to a Public Records Act (PRA) request and to disqualify his counsel. Ardon contends that by producing the documents, the City waived statutory privileges that would have permitted it to refuse the request. He also contends that refusing to . accedeto the City's demandsis not a basisfor disqualification. We affirm. | BACKGROUND AND PROCEDURAL HISTORY Judge Edmon's ruling denying the City's motions includesthe following summary ofthe nature of this class action: "Ardon [claims] that [the] City of Los Angeles improperly collected a Telephone Users Tax (TUT'). According to [Ardon,] the City's TUT excluded from taxationall services not subject to taxation under a similar Federal Excise Tax (‘FET’). In 2006, after several federal courts had held that the FET only applied to [charges for] long distance service [that were based upon both the] duration .. . and the distanceofthecall, the IRS ceased collecting the excise tax on long distance calls [that were] billed only [on] the duration of the call. [Ardon] contend[s] that the TUT was tied to the scope of the federal tax and that the City did not have legal authority to collect taxes on long distance telephone service charged solely by the minute[.] In 2007, the City [amended] the TUT eliminating [the ties] in the TUT to the FET. Ardon contends that the 2007 amendmentwas illegal because it [expanded] an excise tax that required approval by a majority ofvoters." The dispute that produced this appeal arises from a PRA request by Ardon's counsel in January 2013 for documents pertaining to the subject matter of the complaint. The Office of the City Administrator respondedto the request, stating that the City had identified "approximately 53 documents that pertained to the request" and said the City would provide those documentsat a cost of $6.95. Ardon's counsel paid the fee and. received the documents from the City in February 2013. Judge Edmon'sruling notes that "In a letter dated April 3, 2013, [Ardon's counsel] informed the City that [she] had obtained through her [PRA] request copies of two documents that appeared to be listed in [a] 2008 privilege log. [Ardon's counsel] further informed the City that she had obtained a third documentthat appeared to have been prepared in response to two other documents listed in the privilege log and which disclosed the contents of those two other documents. The City responded by asserting that the documents had been inadvertently produced in responseto the [PRA] request and demanded that [Ardon's] counsel return the documents to the City and agree notto rely upon those documents in any way. [Ardon's] counsel declined to do so, contending that the City had waived any claim ofprivilege." The City moved to compel the return of the three documents claimed to be privileged and to disqualify Ardon’s counsel. Following supplementalbriefing and a hearing, the trial court denied the City's motion concludingthat the City's production of the documents in response to Ardon's counsel's PRA request waived any privilege that previously attached to the records whetheror not the document production was the product of mistake, inadvertence or excusable neglect. DISCUSSION ° Government Code section 6254.5! provides that "whenevera state or local agency discloses a public record which is otherwise exempt from this chapter, to any member of the public, this disclosure shall constitute a waiver of the exemptions specified in [s]ections 6254, 6254.7, or other similar provisions of law." Section 6254, subdivision (k) is such an exemption. It provides that records need not be disclosed if | they are the subject ofa privilege created by the Evidence Code. Thus, unless some other provision of law savesit, the act of publically disclosing a documentsubject to a statutory privilege waives the privilege and makes the documenta public record accessible to anyone. The City contendsthat exceptions not found in the PRA mustbejudicially attached to section 6254.5; viz., 1) that statutory privileges are not waived if a protected documentis "inadvertently disclosed;” and 2) that it must appear the clerk who produces the document was specifically authorized by the holder ofthe privilege to waive it. We disagree. Standard ofReview The proper interpretation of section 6254.5 is a question of law, which we. conduct de novo. (Stone v. Davis (2007) 148Cal.App.4th 595, 600; People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.).) “As in any case . involving statutory interpretation, our fundamentaltask here is to determine the Legislature's intent so as to effectuate the law's purpose.’ [Citation.] "We begin with the plain languageofthe statute, affording the words ofthe provision their ordinary and usual meaning and viewing them in their statutory context, because the language employed in the Legislature's enactment generally is the most reliable indicator of legislative intent.' [Citations.] The plain meaning controls if there is no ambiguity in the statutory language. [Citation.] If, however, ‘the statutory language may reasonably be given more than one interpretation, "courts may consider various extrinsic aids, ' All statutory references are to the Government Code unless stated otherwise. 3 including the purposeofthe statute, the evils to be remedied, the legislative history, public policy, and the statutory scheme encompassing the statute.""" [Citation.]" (People v. Cornett (2012) 53 Cal.4th 1261, 1265.) Inadvertent Disclosure The City contends PRA requests are akin to discovery requests in litigated disputes. It argues that an "inadvertent production" of privileged material should be treated similarly in both forums. The City claims that if documents orthings can be recalled by the party producing them in litigated dispute, then a governmental agency must be permitted to erase the statutory waiverof the privilege found in section 6254.5 and claw back documents passed along "inadvertently." The City's position finds no support in the statute or the legislative history that surrounds the enactment of the PRA. As Judge Edmon accurately observed, "disclosure of documents under the [PRA]is not the sameas disclosure in the course of litigation discovery. While litigants are free to obtain evidence through the mechanisms set up by the [PRA], (County ofLos Angeles v, Superior Court (2000) 82 Cal.App.4th 819, 826), the [PRA] was not enacted to supplementthe Civil Discovery Actandits broad provisions are not limited to litigants or attorneys. Rather, the Actitself sets forth its purpose: ‘In enactingthis chapter, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conductofthe _ people's business is a fundamental and necessary right of every person in this state.' (Gov. Code, § 6250.)" Judge Edmonexplained, "Unlike litigation discovery, where inadvertent disclosure is expressly protected from waiverby statute (see Evid. Code, § 912; Code Civ. Proc., § 2031.285), any privileged documentdisclosed pursuantto the [PRA] is waived as to the world ‘[nJotwithstanding any otherprovisions of the law([.]' (Gov. Code, § 6254.5.)" Nothing in the PRA givesthe entity producing it either the right to recoverit or a mechanism to seek its return. And as noted, because the documents were disclosed to Ms. Rickert, the City is precluded from denying disclosure to anyone who asks. In distinguishingcivil litigation discovery from PRA disclosures, Judge Edmondstated, "[C]ivil discovery is subject to the supervision of the Court. A party who inadvertently produces a privileged document in discovery may havea statutory right to have the privileged document returned and may invoke the process of the Court to invoke that right. (See, e.g., Code Civ. Proc., § 2031.285.) And even whenthere is no[] direct statutory provision for the return of a privileged document, a party who inadvertently produced privileged documentin the course oflitigation has a clear mechanism for redress — litigation always involves a judge with the powerto order the document's return." That is obviously not the case with PRA requests and responses andit is notable ‘that section 6254.5, subdivision (b), explicitly states that a privilege is not waived if disclosure is compelled by legal process or proceedings. Judge Edmonnotedthat the City agreed that the statutory waiver in section 6254.5 might be a problem if, after making a PRA disclosure of the documents to counsel Rickert, it asserted its right to withhold privileged documents to another person not involved in Ardon's case who makes the same request. Although the City said the trial court "need not address this hypothetical," Judge Edmon disagreed. She stated, "Quite the contrary. The City's hypothetical is crucially important becauseit illustrates exactly whyan ‘inadvertent disclosure' exemption cannot beread into the statute. As discussed above (and even suggested by the City's cited legislative history), now that the City has disclosed the documents to one memberofthe public,it is prohibited as a matter of law from ‘selectively withholding' that document from any other memberof the public. [H]ow can a public record, available to anyone who requests it as a matter of law, possibly be privileged?" Judge Edmonrelied upon Masonite Corporation y. County ofMendocino Air Quality Management District (1996) 42 Cal.App.4th 436 as authority for its ruling. There, Masonite soughtto enjoin the district from disclosing certain documentsto a third party under the PRA because documents it was required to disclose to the district were trade secrets. Although Health and Safety Code section 44346 permits Masonite to protectits trade secrets, it claimed it had inadvertently failed to do so and deserved relief from the waiver. The Masonite court agreed with thetrial court that "(vjoluntary disclosure of information as a public record, even if mistaken, constitutes a valid waiver of trade secret protection." (Masonite, supra, at p. 455.) Judge Edmon acknowledgedthat in Masonite, the party seeking to protect the documents was notthe party that disclosed them. She stated, "Thatdistinction is of little import, however, because in this case the party seeking to invoketheprivilegeis also the public agency subject to the [PRA]. If anything, the casefor waiveris only stronger[.] Masonite's error wasto inadvertently disclose the documentto a regulator without the proper designation. To the extent that the City's disclosure can be construed as ‘inadvertent,its inadvertent error was to disclose the documents to a memberofthe publicwith no legalrestrictions on the manner in which the documents could be used. That disclosure, even if inadvertent, permanently destroyed any semblance of confidentiality by converting those documents into public records subject to disclosure to any memberofthe public at any time for any reason. Based on the plain language of the statute, any attorney-client or work product privilege that may have once existed was ’ waived at the time of disclosure under the [PRA]." We agree. Moreover,the relief sought by the City is inconsistent with the legislative history of section 6254.5. The City pointed out that statements by legislators and ina legislative staff report declare the purpose of the waiver wasto avoid "selective disclosure." The exception sought by the City would accomplish exactly that;viz., selective disclosure of the allegedly privileged documents to Ms. Rickert but not to others. As Judge Edmonsaid, "In the construction of a statute . . . the office ofthe judge is simply to ascertain and declare whatis in termsor in substance contained therein, not to insert what has been omitted or omit what has beeninserted[.]' (Manufacturers Life Ins. Company v. Superior Court (1995) 10 Cal.4th 257, 274.) In cases such as this where a party claims an exclusion from statute not found in the statute itself, Courts 'must assume that the Legislature knew howto create an exception if it wished to do sof.]' (City ofOntario v. Superior Court (1993) 12 Cal.App.4th 894, 902.) Indeed, the Legislature clearly knew howto create an exception to the otherwise absolute waiver provision in section 6254.5: it created nine ofthem. (See Gov. Code, § 6254.5, subds. (a)-(i).) None of those nine exceptions to the absolute waiver provided in section 6254.5 exempts an ‘inadvertent disclosure.' [{] Unlike litigation discovery, where inadvertent disclosure is expressly protected from waiver by statute [citation], any privileged document disclosed pursuant to the [PRA] is waived as to the world ‘(notwithstanding any other provisions of the law[.]' (§ 6254.5.)" Weconcludethat section 6254.5 unambiguously expresses the Legislature's intention that everything produced in a response to a PRA request must be accessible to everyone exceptin the limited circumstances stated in the statute itself. We hold that disclosures pursuant to the PRA that are made inadvertently, by mistake or through excusable neglect are not exempted from the provisions of section 6254.5 that waive any privilege that would otherwise attach fo the production. Disclosures by Clerical Employees ofthe City Administrators Office The City also contends another implied exception should be attached to section 6254; namely, a waiver ofstatutory privileges only appliesif it is shown the "low level employee" producing the document was explicitly authorized by the city council or the city attorney to waive it. We disagree. First, it is not our function to rewrite legislation. Second, such an exception would putit within the power ofthe public entity to makeselective disclosures through "low level employees" and thereby extinguish the provision in the PRA intended to make such disclosures available to everyone. Ardon's Counsel DidNotViolate the Rules of Professional Ethics by Making a PRA Request Judge Edmon concluded that "Ms. Rickert used the [PRA] for exactly the purpose the Legislature intended. Nothing in [her] request targeted privileged information. It merely requested generic categories of public records relating to the adoptionof a citywide tax ordinance that Ms. Rickert believed to be unlawful. Itis difficult to conceive of a request more squarely within the Legislature's intent in enacting the [PRA]." We agree. Judge Edmon added, "As the City concedes, Rule 2-lOO(c) expressly permits an attorney to contact a represented publit official about the subject matter of the official's representation in order to preserve the attorney's right to petition the government. Interpreting a nearly identically worded exception to the predecessor rule to Rule 2-100, the State Bar agreed[.] (State Bar Formal Op. No. 1977-43.) ... [{] Attorney or not, Ms. Rickert had a ‘fundamental and necessary’right to petition her government under the [PRA.] Ms. Rickert's exercise ofher statutory and constitutional rights to petition her government regarding a matter of public importance was entirely within the scope ofpermitted professional conduct, and there is no basis to disqualify her or any members of her law firm under Rule of Professional Conduct 2-100." DISPOSITION - Weaffirm the trial court's judgment. Costs on appeal are awarded to Ardon. CERTIFIED FOR PUBLICATION. BURKE,J.” We concur: GILBERT,P.J. YEGAN,J. *(Judge of the Superior Court of San Luis Obispo County, assigned by the Chief Justice pursuantto art. 6, § 6 of the Cal. Const.) Lee Smalley Edmon,Judge Superior Court County of Los Angeles Colantuono, Highsmith & Whatley, Holly O. Whatley, AmyC. Sparrow, Tiana J. Murillo; Office of the City Attorney, Noreen S. Vincent, Beverly A. Cook for Defendant and Appellant. DennisJ. Herrera, San Francisco City Attorney, Christine Van Aken, Chief of Appellate Litigation and Warren Metlitzky, Deputy City Attorney for Amicus Curiae The League of California Cities and the California State Association of Counties on behalf of Defendant and Appellant. Wolf Haldenstein Adler Freeman & Herz, Francis M. Gregorek, Rachele R. Rickert, Marisa C. Livesay; Chimicles & Tikellis, Timothy N. Mathews; Cuneo Gilbert & Laduca, Sandra W. Cuneo; Tostrud Law Group, Jon A. Tostrudfor Plaintiff and Respondent. C o l a n t u o n o & Le vi n, P C 3 0 0 $. G R A N D AV EN UE , SU IT E 2 7 0 0 122864.1 L O S A N G E L E S , C A 9 0 0 7 1 - 3 1 3 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27° 28 PROOF OF SERVICE Ardon v. City of Los Angeles,et al. LASCCase No. BC 363959, and related cases Court of Appeal Case No. B252476 Supreme Court Case No. S223876 I, Bernadette Morgan, declare: I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 300 S. Grand Avenue, Suite 2700, Los Angeles, California 90071-3137. -On May 11, 2014, served the document(s) described as: PETITIONER CITY OF LOS ANGELES’ OPENING BRIEFbyelectronic transmission at the electronic service addresses identified below onall interested parties to said action at the following addresses: SEE ATTACHEDSERVICE LIST VIA ELECTRONIC MAIL:I electronically transmitted a copy of the within document in a pdf or word processing format to those persons noted on the attached list at their respective electronic mailbox addresses using Lexis File & ServeXpress in accordance with the Cal. Rules of Court rule 2.251(g) on the date set forth above. 1 declare under penalty of perjury under the laws of the State of California that the aboveis true and correct. Executed on May 11, 2015, at Los Angeles, California. bop BERNADETTE MORGAN SERVICE LIST California Supreme Court Case No. $223876 Court of Appeal Case No. B252476, Trial Court Lead Case No. BC363959 [Related to Case Nos. BC406437; BC404694; BC363735; and BC447863] Attorneys for Estuardo Ardon, BC363959 Francis M.. Gregorek Rachele R. Rickert Marissa C. Livesay Wolf Haldenstein Adler Freeman & Herz LLP 750 B Street, Suite 2770 San Diego, CA 92101 619 239-4599 619 234-4599 fax Daniel W. Krasner Wolf Haldenstein Adler Freeman & Herz LLP 270 Madison Avenue New York, NY 10016 212 545-4600 212 545-4653 fax Nicholas E. Chimicles Timothy N. Mathews Benjamin F. Johns Chimicles & Tikellis LLP One Haverford Centre 361 W.Lancaster Avenue Haverford, PA 19041 610 642-8500 sty. 610 649-3633 fax Jonathan W. Cuneo William Anderson CuneoGilbert & Laduca, LLP 507 C Street, NE Washington, DC 20002 202 789-3960 202 789-1813 fax Sandra W. Cuneo Cuneo Gilbert & Laduca LLP 330 S. Barrington, #109 Los Angeles, CA 90049 424 832-3450 424 832-3452 fax Jon A. Tostrud Tostrud Law Group,P.C. 1925 Century Park East, Suite 2125 Los Angeles, CA 90067 310 278-2600 310 278-2640 fax Attorneysfor J2 Global Communications,!nc., BC 404694 Robert J. YorioJames W. LuceyCarr & Ferrell LLP120 Constitution Dr. —Menlo Park, CA 94025650 812-3400650 812-3444 fax 142315.1 Attorneys forTracfone Wireless, BC 363735 AmyL. Silverstein Edwin Antolin 12 Gough Street, 2nd Floor San Francisco, CA 94103 phone: (415) 593-3502 fax: (415) 593-3501 asilverstein@sptaxlaw.com eantolin@sptaxlaw.com 415 593-3500 415 593-3501 fax Attorneysfor City of Los Angeles Carmen Trutanich NoreenS. Vincent Michael Nagle Office of the City Attorney 200 North Main Street, Suite 920 Los Angeles, CA 90012 213 978-7726 213 978-7711 fax By 0.5. Mar| Second Appellate District of the Court of Appeal, Case No. B252476 Clerk of the Court of Appeal Second District Appellate Court 300 S. Spring Street, Fl. 2, N. Tower Los Angeles, CA 90013-1213 By US .mai | Superior Court Judge Presiding in Lead Case BC363959 The Honorable Amy HogueLos Angeles Superior CourtCentral Civil West Court House600 S. Commonwealth Ave., Dept. 305Los Angeles, CA 90005(213) 351-8595 By US Mair| 142315.1 6§ 4/2015 htos-//secure.fiisandservexpress.comWebServerWebPages/Ffie AndServeprcReviewSubmitasp?dovVhat=Confirma&nUser=428505&nGroupi D= 4&.. File & ServeXpress Transaction Receipt __.._File-&ServeXpress-_Transaction_ID- 57222234. Submitted by: Pamela Jaramillo, C olantuono Highsmith & Whatley PC Authorized by. Holly Whatley, Cola ntuono Highsmith & Whatley PC Authorize and file on: May 11 2015 3:12PM PDT fae . Court. CA Superior Court County of Los Angeles Division/Courtroom: N/A Case Class: Civil-Ardon vs City Of La s Angeles & Related Cases (BC363259) Case Type: ComplexLitigation Case Number. BC363959 Case Name: Ardon, Estuardo et al vs City Of Los Angeles & Related Cases et al Transaction Option: Serve Only - Public Billing Reference: 42007-0005 - Ardonv . City of Los Angeles Case No. BC363959 Read Status for e-service: Not Purchased Documents List 1 Document(s) Attached Document, 69 Pages Document ID: 61901494 Document Type: Access: Statutory Fee: Linked: Writ Secure Public $0.00 Documenttitie: Petitioner City of Los Angeles' Opening Brief Expand All [=] Sending Parties (1) Party Party Type Attorney Firm Attorney Type City of Los Angeles Defendant Whatley, Holly Colantuono Highsmith & Whatley PC Attorney in Charge EI Recipients (11) El service List (11) Delivery , Party : Attorney Option Party Type Attorney Firm Type Method Service Ardon, Estuardo Plaintiff Gregorek, Wolf Halde nstein Adler Freeman & Herz Attorneyin E- . Francis M Charge Service Service Ardon, Estuardo Plaintiff Rickert, Wolf Halde nstein Adler Freeman & Herz Attorney in E- . Rachele R Charge Service Service Ardon, Estuardo Plaintiff Livesay‘ Wolf Haldens tein AdlerFreeman & Herz Attorney in E- . Marisa C Charge Service Service Ardon, Estuardo Plaintiff Tostrud, Jon Tostrud La w Group PC Attorney in E- . A Charge Service Service Ardon, Estuardo Plaintiff Cuneo, Cuneo Gilb ert & LaDuca LLP Attorney in E- . Sandra W Charge Service Service - Ardon, Estuardo- Plaintiff Mathews, Chimicles & Tikellis LLP-Haverford Attorney in E- . Timothy Charge Service Service California Superior Court Interested HogueJU, California S uperior Court-Los Angeles County- Attorney in E- County of Los Angeles Party Amy D CCW Courthouse-Hogu e(307) Charge Service Service J 2 Global Plaintirr LUCEY: Carr & Ferrell LLP we Attorney in E- James W Charge Service Service | 2 Global Plaintiff Yorio, Carr & Ferrell LLP Attorney in E- Itipssecurefileandservexpress.com/VebSer ver WebPages/FileAndServelprcReviewSubmitasp?doWhal=Confirm&nUser1D=42B5058nG roui= 1&nCourt... 1/2 512015 htips//secure.fileandservexpress.com/WebSe rver/WebPages!F'iteAndServelprcReviewSubmitasp?doW hat=ConfirménUserID=4286058&nGrouplD=16. . Robert _ Charge Service Service Tracefone Wireless inc Plaintiff Anto lin, Silverstein & Pomerantz LLP-CA Attorney in E- . Edwin Charge Service . wae Antolin , . . - Service Tracfone Wireless Inc Plaintiff. : Silverstein & Pomerantz LLP-CA Attorney . 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