ARDON v. CITY OF LOS ANGELESAppellant’s Reply Brief on the MeritsCal.August 28, 2015' COPY SUPREME COURT $223876 FILED IN THE SUPREME COURT OF THE AUG 28 2015 STATE OF CALIFORNIA Frank A. McGuire Clerk ESTUARDO ARDON,ON BEHALF OF HIMSELF AND Deputy OTHERSSIMILARLY SITUATED Plaintiff, Vv. CITY OF LOS ANGELES Defendant DEFENDANTCITY OF LOS ANGELES’ REPLY BRIEF ON THE MERITS 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 THECITY 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 DEFENDANT CITY OF LOS ANGELES $223876 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA ESTUARDO ARDON, ON BEHALF OF HIMSELF AND OTHERSSIMILARLY SITUATED Plaintiff, Vv. CITY OF LOS ANGELES Defendant DEFENDANTCITY OF LOS ANGELES’ REPLY BRIEF ON THE MERITS 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) NoreenS.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 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 DEFENDANT CITY OF LOS ANGELES TABLE OF CONTENTS INTRODUCTION. .........c:ccesssscessstecsccecessseeesscesessessssseseecsecsseessueseeesnnenessesensseseenseaeessnasseenetes 5 REVIEW IS DE NOVO, NOT FOR ABUSEOF DISCRETION.......ccccssssstessresseseesesees 7 I. INADVERTENT DISCLOSURE DOES NOT WAIVE PRIVILEGE II. Ill. IV. UNDER THE PUBLIC RECORDS ACT’S PROHIBITION OF SELECTIVE DISCLOSURE .............scssssssssssseessscssseeseceeseeeseseesenesesseneesseneessaeeeeeneees 8 A. The Public Records Act Can Be Harmonized with the Evidence COE occ cecccscssccsssessssesseussecessncessseeesssesesenscseseesereeesnsnsssescnssensesseeessseseeseeseseneons 9 B. Newark’s Harmonization is Consistent with Section 6254.5’s Intent to Bar Selective Disclosure ..........cccccsecsccsseceesssseesessesceseeesseeeseseeseceseeeecesens 16 C. Disclosure Was Inadvertent Here ...............:csssssccsseeeseeeeseeecessseeenessenneeesnes 18 D. Newark Protects Public Agency Privilege under the Public Records ACt Just aS in DisCOVELY .........cceccsccsceenetsssessecesseesseeneeessesesseesserenseeeneeestentes 22 E. The Documentsin Issue are Privileged ........... cc eeeseessseeeeeseeseeeeseeseeseneeenee 23 1. The Fujioka Letter is privileged ............cscssseseseeesssseeteestesseeeenens 23 2. The League Memois privileged ............:ccsccsscseseeeseeseeseeeeteesteeseeess 24 a. The League Memois work product........ccsscssssessessreereneesees 25 b. The League Memoisattorney-client privileged...............004 27 ARDON’S COUNSEL’S REFUSAL TO COMPLY WITH THEIR ETHICAL DUTIES HAS TAINTEDTHIS CASE...ccccsscssssesseneeseeennenesensenes 30 CO-COUNSEL SHARE ETHICAL OBLIGATIONS UPON INADVERTENT RECEIPT OF OBVIOUSLY PRIVILEGED MATERIAL ..........:cccssssscsscesscsesecnssesscesscoscnsceseesseeeseeenseesaeeeseessensseanenssreceeenarseareonees 36 ARDON’S COUNSEL MUST RETURN THE PRIVILEGED DOCUMENTS AND DESTROY ALL COPIES..0.....cccecccesseeseetsereenseenseeeeeneeees 37 CONCLUSION..........::cssccsssccsccececeeeeseccesnsssesensscessevesaesessesessaeensesseesssevsnereesnaneesseengs 37 TABLE OF AUTHORITIES Page(s) Federal Cases Pierce v. Underwood (1988) ABT U.S. 552 ooo eccecesseseeceeseeeceessecesecsecessecensesseeseceacerseecesnseseceasesceseeeessecteeeeesesenseeensens 1] California Cases Barratt American v. City ofRancho Cucamonga(2005) 37 Cal4th 685 0... ececccecsecsssseceseeceeseececaescerseeseecsaeeecsessesecsessceseeeatesseessasesseeeeeessenseenens 1] Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645 0... cccccccsccecssscsseecesecessceensseccesnceccensessecenseessnesseessesesaeeeeeseeeseeeestens 17 In re Charlisse C. (2008) 45 Cal.4th 145occcc cccsscsccsecsseeeeseesenececcesseesseecesseeessceeaecessaesseesesesseeenseeesnaseesaseneceesss 7 City and County ofSan Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839... ceccccccsessessecsscecensecssecstecsaeeceessessaceeseecesaecssceseenscsseeeeesaesesseeecssseneeee 36 Cloud v. Superior Court (1996) 50 Cal.App.4th 1552...eeccceecesseceseceeceeeseeecsnessecesseeeaeesaecseeeeeeseeeseeeecesseeeeeeseeseentes 10 People ex rel. Dept. ofCorporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal4th 1135... eccccccccsesssceessceeesseeeseesceesseessecseesseeeenessssesneeessessesesecsssenssessaseeesereneenes 36 Federal Home Loan Mortgage Corporation v. La Conchita Ranch Co. (1998) 68 CalApp.4th 856.0... cecccccecssscessseeessecesseesseeesseeseseessecseeueeerseneecessseeesssesucnseeeseesssenss 7 In BP Alaska Exploration, Inc. v. Superior Court (1998) 199 CalApp.3d 1240ceeescccssesecescsrceseeeeeessseesecseceeeraecseesseeseesecesseesseeeneseeessesenses 26 Lungren v. Deukmejian (1988) 45 Cal.3d 727 o...eeeccscessesssscesesscececceneecescceceeeceesseecseaeeensecscessaseeeeesecseeaeeenaeenaeeseaueecseensenes 12 Newark Unified School District v. Superior Court (2015) | Cal.App.4™ 2015 WL 4594095 .oo.cecceccssccscesscsssscessesstesstesesstsstsstsaseveens passim OXYResources California LLC v. Superior Court (2004) 115 CalApp.4th 874.0... ccccccccscccsssscsscesscsscesseseseseeeecseeessueeneesseesesseeesseeenseensesessnens29, 30 Rich v. Schwab (1998) | 63 Cal.App-4th 803 eccscssscsssssssssssssssssssssssssssssssesecssssesessscceccecceceeeesesensnnsssnneeteseensensecetee 11 Rico v. Mitsubishi Motors (2007) 42 Cal.4th 807... eccccccssccscssssssccssseseesssesseceeessessessseeceseccsucsssesesasesseesenteseesseeeesseeseneentes 34 State Compensation Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644 0... cecesscssssesssssssssessssssesesesesesssesessssensnesesessseesenensnesseneessseneses 10, 36 State Dept. ofPublic Health v. Superior Court (2015) 60 Cal.4th 940... cccssccssccssesscssseessccssessscessescssseessesesssnesessesseseeensenssesesenseseeeneees 14, 15 California Statutes CodeCiv.Proc. S2018.010. ..ccccesccscsesesccesesssscscsesscssoesssessssscssecsesessnessesesensnessesssseasssnensessaecssecenesaceeseesetes 25 § 2018.020 .....ceesescsesesccssesssccessssscsessssccevscssensesenssssessssssesessssesssseesssscesscacesen sens senseaeseses 23 § 2018.030(a) ......cscsesssccssesseessesscscsscsssececscarsescsessssssnsssessesescassesaescssesssseesenesasensnaeasasecery 25 § 2031285 eeccecescsscsseseeceecscsssescessessssscesssscsesssensesessenssssssesensensusecsssseseessesseesnecasaeaneesey 6 Evid. Code § 1D veeeeccecsccsccsssecsecsccceseesassscsssnesseceseecessnassessessesensesnenensarseceseeecsensesssnesseseseseeseees passim § 912 SUbA. (b) ...cecescsssseseecsceceeeecsesescscecessnessssesanenssesaesesenesensssnenesesarsseesenaeasenesenensarees 18 § 950 voecccccssssescsccesescesesesensscesessesesecscseseusssesesesesesesnsesessssssssesessesnessssesssesaessseneeesseneneeey 25 § O51 oc ccsssscsscssssececssestseressessssscessscersnssesesssteceeueenssensatsssarsnsasaessnocsentesensseaaseasensoseenensnses 27 § 952 vacccsccsssssssessescscscsesecececsvsescsssessssssseseseaesesesesenesesenenenessseersnssasasassasenaessaseessaeges 21, 28 § 954 vo eccsceesscsecsseececsscscscsecscssessssscnesnsssssesesesesensessneseesesssesenenerssesensssssseessesorseasonsogs 21,27 Gov. Code § 6245.5 v.eccscscescessescesescseccssessseesesosenscsscscsssesesssessecssesssseseneneasensssseacseseesnsssserensensonsacarses 13 § 6254 SUDA. (K) ...cesscsscesececescscsseenessseseecsessssenesessscsesessaneceeeseceasasssucnsnsenesssenesseneeaseesnesses 7 § 6254.5 ccccccsccsesceecseersessssecessscsreseesecsssensssssensescesensesecsensessseseesesssnesssanenaseaeneeaes passim § 254.7 eccccccssessssesssssencsesecescscsssssscsesecsesesesnssssessssssenseseseesssesseseasessesesnsassssnaeaseeoseasensages 9 Other Authorities California Rules of Prof. Conduct, rule 3-100 .0.........eeeesesesscessecnessssseesrsssseeaneeeeeeeensesenes 27 -INTRODUCTION In a case directly on point released just weeks ago, the First District recognized that “[w]hen twostatutes potentially conflict, ourfirst task is not to declare a winner, butinstead to find a way,if possible, to avoid the conflict.” (Newark Unified School District v. Superior Court (Brazil) (July 31, 2015, A142963) ____ Cal.App.4" ____ [2015 WL 4594095 at p. *8] (Newark).) Thus: Twenty years of consistent judicial interpretation of Evidence Codesection 912 hold that the inadvertent production of privileged documents does noteffect a waiverof the privilege. That statute cannot, at this late date, be interpreted to the contrary. Accordingly, if we were to adopt [Respondent's] interpretation of [Government Code] section 6254.5, the twostatutes would dictate diametrically, and irreconcilably, opposed results ... . Because reconciling the statutes would be impossible, it would become necessary to choose between them. (Id. at p. *10.) Of course this is not the preferred method for resolving apparentstatutory conflicts, and to harmonize the Public Records Act with Evidence Code section 912, this Court should approve Newark’s holding that inadvertent disclosure of attorney-client privileged materials does not work waiver under Government Codesection 6254.5 as selective disclosure does. Harmonizing these statutes does not undermine the legislative intent of section 6254.5. As Newark recognizes, “the target of section 6254.5 was‘selective’ disclosure: picking and choosing by an agency of the membersof the public to whom documents will be released.” (Newark, supra,___ Cal.App.4t ___ [2015 WL 4594095at p. *7].) “Selection” inherently involves knowing and deliberate action, and it is absurd to suggest a public agency soughtto selectively disclose privileged materials to its adversaries in high-stakeslitigation. Only inadvertent disclosure can accountforthe facts here. Other than the appellate opinion on review here (“Opinion”), no published authority has ever held inadvertent disclosure of materials subject to the attorney-client privilege or the work product rule results in waiver — muchless in litigation in which a defendant public agency has fought successful discovery battles to protect its privileges. This Court should therefore reject the Opinion’s attempt to distinguish litigation privileges in this context and recognize that both Evidence Codesection 912 [“Waiverof privilege”] and Code of Civil Procedure section 2031.285 [“Electronically stored information”]are silent on the present facts. Like Newark, this Court should harmonize the Public Records Act with the Evidence Code, which the formerexplicitly cross-references in subdivision (k) of Government Codesection 6254, and protect privilege from waiver by inadvertent disclosure, whether in discovery or pursuant to the Public Records Act. REVIEW IS DE NOVO, NOT FOR ABUSE OF DISCRETION Plaintiff Eduardo Ardon (“Ardon”) argues this Court should review thetrial court’s decision for abuse of discretion. To do so, he confuses the standardof review of findingsof fact with that for review for matters of law. The central issue hereis, of course, legal, as this Court does notsit to review errorsof fact. Ardon misspeaks to state “[a]s the City concedes,a trial court’s decision on a motion for disqualification is reviewed for abuse of discretion.” (Answer Brief at p. 11.) While Defendant City of Los Angeles (“City”) agrees that conclusions based on findingsof fact are generally reviewed for abuse of discretion, where there are no material disputed factual issues, an appellate court reviewsthetrial court’s determination de novo.(In re Charlisse C. (2008) 45 Cal.4 145, 159 [“Asto thetrial court’s conclusionsof law ... review is de novo”J.) Nordoes Federal Home Loan Mortgage Corporation v. La Conchita Ranch Co. (1998) 68 Cal.App.4" 856 support Ardon’s claimed deferential standard of review —that appeal reviewed implied findingsoffact. (Id. at p. 860 [“Thus, even where there are no express findings, we mustreviewthetrial court’s exercise of discretion based on implied findings that are supported by substantial evidence”].) Here, no one disputes how Ardon’s counsel obtained the privileged documentsorthatshe failed to immediately notify the City that privileged documents had been inadvertently disclosed by a low level City employee. Noris there dispute that she refused to return the documents as repeatedly requested, and persists in claimed entitlement to retain them. Thus, Ardon’s argument for abuse of discretion review fails; this Court’s review here is de novo. Moreover, even if the abuse of discretion standard applied (which it does not), mistake of law is always an abuseofdiscretion. Both the trial court and the SecondDistrict erred to assert a statutory basis for the commonlawrule that privilege is not waived by inadvertent disclosure in discovery, and then using that nonexistent legislation to distinguish the Public Records Act, which — like the Discovery Act — also provides no statutory exception to waiver under these circumstances. (Opinion at p. 4.) - The Answerbrief fails to addressthis glaring error. This court may take thatsilence as impotence — Ardon simply has no answer. I. INADVERTENT DISCLOSURE DOES NOT WAIVE PRIVILEGE UNDER THE PUBLIC RECORDSACT’S PROHIBITION OF SELECTIVE DISCLOSURE Ardon’s Answerbrief asks this Court to distinguish well- established standardsof professional conduct that apply to ‘privileged documents inadvertently produced in discovery from privilege rules under the Public Records Act, as though these were entirely independentsourcesof privilege. As discussed below, however, this Court should harmonizethe discovery and public recordsstatutes as Newark recently did. (Newark, supra, ___ Cal.App.4th ___ [2015 WL 4594095atpp. *8-9].) A. The Public Records Act Can Be Harmonized with the Evidence Code Ardonargues Public Records Act exceptions to waiverset forth under Government Codesection 6254.5 do notinclude inadvertent disclosure. That no exception under section 6254.5 explicitly states inadvertent disclosure among thedetailedlist of materials protected by sections 6254 and 6254.7 does not end the inquiry. Rather, subdivision (k) of section 6254 does except documents subject to attorney-clientprivilege and expressly cross- references the Evidence Code and invites harmonizationof that Code with the Public Records Act. If attorney-client privilege were waived in all settings unless an express statutory exception applies, there would be no exception for the inadvertent disclosure of privileged documents in discovery. Evidence Code section 912 states only that attorney-client privilege is waived “if any holderof the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone.” Uncoerced, inadvertent “disclosure” would amountto waiver underthat languagereadin isolation. Yet courts uniformly recognize that: Whena lawyer whoreceives materials that obviously appearto be subject to an attorney-client privilege or otherwise clearly appear to be confidential and privileged whereit is reasonably apparentthat the materials were provided or madeavailable through inadvertence, the lawyer receiving such materials should refrain from examining the materials any more thanis essential to ascertain if the materials are privileged, and shall immediately notify the sender that he or she possesses material that appears to be privileged. (State Compensation Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, 656-657 (State Fund).) } ' The federal cases Ardoncites for his claim the rule does not apply whena privilege holder inadvertently turns over a document to an attorney for production pre-date State Fund and are not California authority in any event. (Answerat p. 20, fn. 13 [citing Underwater Storage, Inc. v. United States Rubber Co. (D.D.C. 1970) 314 F.Supp. 546 and D’Ippolito v. Cities Service Co. (S.D.N.Y. 1965) 39 F.R.D. 610].) California and federal evidence law are, of course, distinct. (E.g., Cloud v. Superior Court (1996) 50 Cal-App.4th 1552, 1558 [rejecting “self-critical analysis privilege” recognized by federal courts].) 10 The commonlawgloss on the Evidence Code, which excepts inadvertent disclosure from waiver and imposesan ethical obligation on counsel to refrain from exploiting an adversary’s inadvertence, must be harmonized with the Public Records Act: It has long been therule in this State that statutes relating to the same subject matter are to be construed together and harmonizedif possible. In other words,it is not to be presumedthatthe legislature in the enactmentof statutes intends to overthrow long- established principles of law unless such intention is made clearly to appearby either express declaration or by necessary implication. (Rich v. Schwab (1998) 63 Cal.App.4th 803, 814 [internal quotations and citation omitted].) Moreover, whena legislative body re-enactsa statute, it is understood to incorporate settled interpretations of the re-enacted statute. (Barratt American v. City ofRancho Cucamonga (2005) 37 Cal.4th 685, 704 (“Under the ‘reenactmentrule’ of statutory interpretation, the unamendedportion of the statute is reenacted with the enactmentof the amendment, so that the statute is deemed to have been acted on as a whole”]; Pierce v. Underwood (1988) 487 U.S. 552, 567 [“reenactment, of course, generally includesthe settled judicial interpretation”]; Scalia & Garner, Reading Law: The Interpretation of Legal Texts (2012) pp. 320-322 [“Canon of Imputed 11 Common Law Meaning”] (“[W]Jords undefined in a statue are to be interpreted and applied according to their common-law meanings.”).) Thus, the Legislature is presumed to have been aware of the commonlaw interpretation of the Evidence Codeprovisionsrelating to inadvertentdisclosure in discovery on each of the several occasions when it amended Government Code sections 6254 and 6254.5 since State Fund wasdecided, andthere is no indication the Legislature intended to abrogate its rule.” Therefore, the trial court and Court of Appeal both erredin failing to harmonize subdivision (k) of Government Code section 6254 with Evidence Code sectionsit expressly cross-references. By contrast, the First District harmonized Section 6254.5 with the Evidence Code in Newark: In order to harmonize section 6254.5 with Evidence Code section 912, which has been construed notto effect a waiverof the attorney-client and work product privileges from an inadvertent disclosure, we construe 2 Government Codesection 6254 has been amended noless than 24 times since State Fund was decided in 1999, most recently by Stats. 2014, ch. 31, § 2. Similarly, Government Code section 6254.5 has been amended 3 times since 1999, most recently by Stats. 2014, ch. 401, § 35. 12 section 6254.5 not to apply to an inadvertentrelease of privileged documents. (Newark, supra,___ Cal.App.4th ____ [2015 WL 4594095at p.*1]J.) Newark’s facts are strikingly similar to those here. There, a citizen and two community organizations made Public Records Act requests of the Newark Unified School District (“District”). The District inadvertently included in its response more than 100 documents protected by the attorney-client privilege. (Newark, supra,___ Cal.App.4th ___ [2015 WL 4594095at pp.*1-3].) The District soon realized its error and asked the recipients — including a lawyerfor one of the community organizations — to return the documents. They refused, like Ardon’s counsel, claiming Government Code, section 6254.5 waived the privilege. Newark rejected that position, as this Court should do here: Although inadvertent disclosures were not within the contemplation of the Legislature when it enacted section 6245.5, that does not require usto interpret the statute to exclude them, since inadvertent disclosures are within a reasonable interpretation of the statutory language and are notinconsistent with the Legislature’s purpose. Rather, we are compelled to interpret section 6254.5 to exclude inadvertent disclosures in orderto avoid a conflict with Evidence Code section 912. (Newark, supra, Cal.App.4th ___ [2015 WL 4594095atp. *8].) 13 Newark correctly recognized that “[w]hen twostatutes potentially: --...-- conflict, our first task is not to declare a winner, but insteadto find a way, if possible, to avoid the conflict.” (Ibid.) Indeed, Newarkcites this Court’s recent decision of State Dept. of Public Health v. Superior Court (2015) 60 Cal.4th 940, 955-956 (DPH), in support. Wehaverecently emphasized the importance of harmonizing potentially inconsistent statutes. A court must, where reasonably possible, harmonizestatutes, reconcile seeming inconsistencies in them, and construe them to give force andeffect to all of their provisions. This rule applies although oneof the statutes involved deals generally with a subject and anotherrelates specifically to particular aspects of the subject. Thus, when two codesare to be construed, they must be regardedas blending into each other and forming a single statute. Accordingly, they must be read together and so construedasto give effect, when possible, to all the provisions thereof. Further, all presumptions are against a repeal by implication. Absent an express declaration of legislative intent, we will find an implied repeal only whenthereis no rational basis for harmonizing the two potentially conflicting statutes, andthestatutes are irreconcilable, clearly repugnant, 14 and so-inconsistentthat the two cannot have concurrent operation. (DPH, supra, (2015) 60 Cal.4th at 955-956, internal quotations and citations omitted.) | Applying that standard, Newark concluded: “section 6254.5 can plausibly be interpreted to exclude the inadvertentrelease of documents from its scope” and “[b]y adoptingthis interpretation, we avoid any potential conflict with Evidence Codesection 912.” (Newark, supra,___ Cal.App.4th _____ [2015 WL 4594095atp. *9].) This rationale is sound, supported by ample precedent regarding statutory interpretation and preservesboth the Legislature’s intent in adopting andre-enacting section 6254.5, as well as the long established practice of courts protecting the attorney-client and work product privileges in the face of inadvertent disclosure.(Ibid. [“The privilege of confidential communication betweenclient and attorney should be regardedassacred.It is not to be whittled away by means of specious argumentthat it has been waived. Leastof alli should the courts seize upon slight and equivocal circumstances as a technical reason for destroying the privilege “] [internal quotations and citations omitted].) 15 B.. Newark’s Harmonization is Consistent with Section 6254.5’s Intent to Bar Selective Disclosure Ardonrelies upon distinguishable case law in an unpersuasive effort to dismiss legislative history of Government Code, section 6254.5. In Lungren v. Deukmejian (1988) 45 Cal.3d 727, the governor’s nominee for Treasurercited a staff report stating that “i]t is understood that the author will submit amendments”that comported with plaintiff's interpretation of the statute at issue in that case. The Court rejected this evidence, because: the ‘understanding’ of an unnamed staff memberof a legislative committee, derived from an unnamed source, as to the anticipated contents of a forthcoming amendmentto a bill, is not admissible as an indication of the Legislature’s intent in ultimately enacting the measure. (Id. at p. 742.) Moreover, this Court’s rejection of the contested staff report in Lungren was supported bya declaration of the author of the quoted language, stating proposed amendments were commonly changed before committee hearings, and that committee staff anticipate an amendmentdoes not mean it will in fact be submitted. (Lungren, supra, 45 Cal.3d at p. 742, fn. 17.) The declarant also stated that, when the amendmentin issue was introduced, it was substantially different from the language he had anticipated. Thus, underthe facts 16 presented there,-this-Court concluded the staff report’s speculation did not evidencethe intent of the Legislature as to the statute it ultimately adopted. Lungren is no help to Ardonhere, however. The legislative reports discussed in Appellant’s Opening Brief involving GovernmentCode section 6254.5 are neither speculative nor unreliable. Rather, the legislative materials consistently reflect intent to preventselective disclosure of privileged documents in concert with Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645 (Kehoe), of which the Legislature was presumedto be aware: The Public Records Act denies public officials any powerto pick and choosetherecipients of disclosure. Whendefendantselect to supply copies of complaints to collection agencies the complaints become public records available for public inspection. (Kehoe, supra, 42 Cal.App.3d at pp. 656-657 [footnote omitted].) Therefore, as both contemporaneouscase law and the committee reports discussed in the City’s Opening Brief (at pp. 18- 20) indicate, section 6254.5 was intended to preventselective disclosure rather than to abrogate long-standing rules that preserve attorney-client privilege in cases of inadvertent disclosure. Again, Newark providesthe apt analysis: Languagein legislative history documents,in addition to stating section 6254.5 was intendedto codify the 17 holding of Kehoe, repeatedly characterizedthe statute’s purposein language taken from Kehoe. ... The Legislature’s purposein enacting section 6254.5, then, wasto prevent governmentofficials from manipulating the PRA exemptionsby asserting them against some membersof the public while waiving them asto others. The statute, in essence, was intended to require agencies to maintain an applicable exemptionas to all members of the public or notatall. (Newark, supra,___ Cal.App.4"____ [2015 WL 4594095at p- *7].) Because inadvertent release “does not involve an attemptto assert the exemption as to some, but notall, membersof the public, the problem section 6254.5 was intended to address”is absent. (Ibid.) In short, there is no unequivocalindicationoflegislative intent to distinguish attorney-client privilege under the Evidence Code and the Public Records Act. To the contrary, Government Code section 6254.5 wasintended only to preventintentionalselective disclosure, which is not at issue here. Cc. Disclosure Was Inadvertent Here Ardon devotes but one paragraphofhis answerBrief to his argumentthe City’s disclosure was not inadvertent, claiming these documents were reviewedbya clerk in the Office of the City Administrator. (AnswerBrief at pp. 28-29.) While the City 18 Administrator is authorized to release documents under the Public Records Act, this does not empowerthe City Administrator, much less a clerkin his office, to waive the City’s attorney-client privilege or the work product privilege held by the City’s attorneys. Those. counsel, of course, had no knowledge of Ms.Rickert’s Public Records Act request because they were deliberately kept out of the loop.. Moreover, any argument the City knowingly and voluntarily disclosed the privileged documentsis belied by its consistentefforts to preserve privilege, as evidenced byits successful motion to quash Ardon’s subpoena demanding disclosure of the League of California Cities Memoanalyzing the legal issues in the underlying lawsuit here, which was designated in the City’s privilege log along with the Fujioka Memoand the Michaelson Letter — the other privileged materialin issue here. (1 CT 154~155 [Declaration of Holly Whatley, TM 8, 10, 11]; 1CT 196].) This assertion also ignores the City’s prompt and repeated demandfor the return of these documents whenits counsel learned of the inadvertent disclosure (1 CT 155-156 [Declaration of Holly Whatley, {J 12, 14] 1 CT 213-215; 1 CT 222- 223), and the promptfiling of the April 30, 2013 Motion to Disqualify — six days after Ardon’s counsel refused the City’s demand.(1 CT 121 [Motion to Disqualify]; 1 CT 211 [April 24, 2013 Rickert letter refusing to return the privileged documents].) 19 Finally, the undisputed evidence showsthe City Administrator neither waived privilege nor authorized anyoneelse to do so. (1 CT 147-148 [Declaration of Miguel Santana, {J 3-5].) Nor did the City Council waive attorney-client privilege. (1 CT 150- 151 [Declaration of Noreen Vincent, Tf 4, 5].) Nor did the City Attorney’s office waive the attorney work productprivilege. (1 CT 151 (Declaration of Noreen Vincent, J 6].) Nor has the Leagueof California Cities waived its work product rights, asJudge Mohr. recognized whenhe granted the League’s Motion to Quash.(1 CT 153 [Declaration of Holly Whatley at ¥ 5]; 1 CT 177.) Ardon nevertheless seeks to describe City staff’s error as “consent,” asserting a material distinction betweeninadvertent disclosure by an attorney and by a client. The effortfails in light of law, policy and the unrefuted facts summarized above. First, Ardon concedes “Section 912 explicitly requires the privilege holder’s consent before waiver by another can occur.” (AnswerBrief, pp. 28— 29, fn. 19.) Thus, Ardon concedesthe law requires the City Council’s consent before disclosureof the city’s attorney-client privileged materials can constitute waiver. But here, as noted above, the City Council did not consent to the disclosure, and no evidence to the contrary exists. Thus, there is no waiver here under what Ardon concedesto be the law. Second, Ardon’s contention, and the lowercourts’ rulings here, collapse the distinction between the City Council and low-level 20 City employees for purposes of waiverof privilege. Doing so would have the consequencesdetailed in the City’s Opening Brief (at pp. 33-34), such as empowering a documentclerk to waive by inadvertence what an elected council member could not do deliberately. Moreover, this would effect a sea changein public policy by shifting power from elected legislators to low-levelstaff . Furtherstill, even assuming both the City Council and the City employees hold the privilege — which the City does not concede — waiver by an employee can not constitute waiveras to the City Council or other holders of the privilege because the Evidence Code explicitly states that waiver by one joint holder of privilege does not waiveit as to another. (See, Evid. Code § 912, subd.(b).) Finally, again, Newark undermines Ardon’s arguments. Disclosure in Newark was by an employee,just as here. (Newark, supra,___ Cal.App.4th ____ [2015 WL 4594095atp. *1].) Under Ardon’s view, waiverarises from errors of any but attorneys. Surely, this turns logic on its head — why would inadvertence by lawyers, trained andlicensedin the law, have less consequence than inadvertence by those of lesser education? Newark did notso hold. Rather, it protected privileged documents inadvertently disclosed by non-attorneystaff. (Id. at p. *9.) It refused to hold District employees to a level of perfection not demandedof attorneys. For these persuasive reasons, this Court should reverse here. 21 D. Newark Protects Public Agency Privilege under the Public Records Act Just as in Discovery Ardon argues that protection for inadvertently produced documents in discovery cannot be extended to responses to Public Records Act requests because “the PRA does not provide any mechanism for the ‘clawback’ of any documents disclosed pursuant to a PRA request ... .” (AnswerBrief at p. 22.) Althoughthis wasthe conclusionof the lower courts, here, it is error because the Discovery - Act has long been interpreted to allow such a clawback underState Fund, even absentexpresslegislative authorization. Whatis not required under the Discovery Act is not required under the Public Records Act — common law mayprotect privilege in the absence of statutory languagein either context. The Opinion’s erroneous assumption that Evidence Code section 912 does expressly authorize clawback simply compoundstheerror. Newark illustrates the point —privilege is protected even whenlitigation is not pending and outside circumstances governed by the Civil Discovery Act. Rather, a public agency can recover inadvertently disclosed material on suit for injunction. (Newark, supra,__ Cal.App.4th ___ [2015 WL 4594095at pp. *11-12].) Newark was “unwilling to adopt an interpretation of the PRA that would leave a public agency with no meansto recover improperly released documents.” (Id. at p.*11.) Rather than “preemptively denyingrelief in all circumstances,” the Court of Appealleft trial courts to decide such suits on a case-by-casebasis. (Id. at p. *12.) 22 Accordingly, that the Public Records Act has no express provision for recovery of inadvertently disclosed privileged materials does not bar protection of those privileges by the tools of equity. E. The Documentsin Issue are Privileged I. The Fujioka Letteris privileged Ardonargueshis counsel did not obtain the September18, 2006 letter the City identifies as the “Michaelson Letter,” but instead obtaineda letter dated September 28, 2006 (“Fujioka Letter”) from William Fujioka, City Administrative Officer, to David Michaelson, Chief Assistant City Attorney, responding to the MichaelsonLetter. (AnswerBrief at pp. 9-10.) While the City has no way of knowing whether Ardon’s counsel has the Michaelson Letter, it is clear that Ms. Rickert is the source of any confusion. First, Ardon admits that in herletter dated April 24, 2013 “Ms. Rickert mistakenly implied that she possessed the September18, 2006letter.” (2 CT 251-252, fn. 6; 1 CT 218.) Second, Ms.Rickert stated in her April 3, 2013 letter that “I have obtained a copy of a document responsive to [the Michaelson Letter] and which discloses[its] contents,” (1 CT 206.) Thus, even assuming she does not have the Michaelsonletter, she admits possession of a responseto it “which discloses[its] contents.” (Ibid.) Moreover, the distinction between the Michaelson Letter and the Fujioka Letter respondingto it is irrelevant. Both documents are confidential 23 communications between an attorney andhis client and therefore subject to attorney-client privilege. (Evid. Code, §§ 952, 954.) Moreover, Ardon cannot shield his counsel’s ethical breach with confusion created by his own attorney. 2. The League Memois privileged Ardon next argues Judge Mohr limited his order sustaining theCity’s and the League’s motions to quash to list-serve emails and — | therefore did not address the League Memo. (Answer Brief at p- 28.) However, the declaration of League General Counsel Patrick Whitnell discussing the League Memowasindisputably before Judge Mohr whenheruled? andhis ruling did not exclude the League Memo.(1 CT 177-181 [order granting League’s motion to quash].) Moreover, the analysis underlying Judge Mohr’s determination thatlist-serve emails are privileged applies equally to the League Memo,as it wasdistributedvia the list-serve to assist public agency counsel in defendingcases like the underlying suit here. As noted in the City’s and the League’s motion to quash, the Leagueoperates a confidential list serve for attorneys representing 3 The City’s Opening Brief details the record evidence that establishes Judge Mohr’s earlier ruling recognized the League Memo as privileged. (OpeningBriefat p.43, fn. 6.) 24 public agencies. (2 CT 321-322 [2007 Whitnell Decl. at { 5].) Documentsin the city’s possession responsive to Ardon’s subpoena included the League Memo, which wasdistributed to thelist serve, in which counsel for the City participate. (2 CT 321 [2007 Whitnell Decl. at J 3].) The list serve is a confidential forum in which attorneys can share legal impressions, conclusions, opinions, research with qualified attorneys withlike interests. (2 CT 321-322 [2007 Whitnell Decl. at { 5].) Moreover, all membersofthe list serve agree to maintain the confidentiality of list serve communications. (2 CT 322-323 [2007 Whitnell Decl. at {J 6, 10].) Accordingly, the League Memois subject to both the work product privilege and the attorney-client privilege. And, indeed, Judge Mohr so ruled. a. The League Memois work product The protection afforded attorney work product from discovery is set forth in Code of Civil Procedure, §§ 2018.010 et seq. Section 2018.030(a) states: “A writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.” The League Memo reflects League attorneys’ legal analysis of disputes like the underlying suit here and wasdistributed by a confidential list serve in which public agency counsel alone participate in confidence. As such, the League Memois a communication among attorneys on issues of common concern and therefore work product. That the League Memo wasexchanged amonga group of attorneys with a 25 commoninterest does not result in waiver, because eachmember of the list serve was subjectto its confidentiality agreement and the League Memowassharedonly throughthatlist serve. (2 CT 321 [2007 Whitnell Decl.at J 3].) , Code of Civil Procedure § 2018.020, entitled “Policy of the state,” establishes the following attorney work productpolicy: It is the policy of the state to do both of the following: © (a) Preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases. (b) Prevent attorneys from taking undue advantage of their adversary’s industry andefforts. In BP Alaska Exploration, Inc. v. Superior Court (1998) 199 Cal.App.3d 1240, the Court of Appeal rejected argumentthat an attorney waived work product protection by delivering writings to the client. That court held waiver would result only by the attorney’s “voluntary disclosure or consentto disclosure of the writing to a person other than the client whohasnointerest in maintaining the confidentiality of the contents of the writing.” (Id. at p. 1261 [emphasis added].) As the court noted: 26 the work product privilege does not-exist to protect a confidential relationship, but rather to promote the adversary system by safeguardingthefruits of an attorney’s trial preparations from the discovery attempts of the opponent. (Id. at p. 1256.) Accordingly, Judge Mohrdid not allow Ardon’s counsel to poach legal theories from League attorneys and counsel | for its membercities. Instead, he required Ardon’s counsel to do her own research, develop her own theories, and reach her own conclusions. Thus, the League Memois work product andits protection from disclosure is supported both by the policy of the work product doctrine and the public interest in allowing public agency counsel to collaborate on issues of common concern. b. The League Memo is attorney-client privileged Evidence Code, section 954 establishes the lawyer-client privilege and empowersa clientto refuse to disclose, and to prevent others from disclosing, confidential communications betweenclient and lawyer. In relevant part, Evidence Code, section 951 defines “client” as: a person who,directly or through an authorized representative, consults a lawyer for the purposeof 27 retaining the lawyer-or securing legal service or advice from him in his professional capacity. Here, every memberof the list serve, including attorneys representing the League and the City of Los Angeles, act as clients with respect to other members from whom legal service and advice are secured; compensation is not required. (Evid. Code, § 950 [defining “lawyer”].) Similarly, city attorneys whoreceived the League Memosecured legal advice, and were therefore clients of the attorneys who prepared it. Thus, the League Memois attorney- client privileged. Norhasthis privilege been waived by disclosure to attorneys representing public agencies. As noted above, all membersofthelist serve agree to preserveconfidentiality of list-serve communications, and the League Memowassharedonlyviathe list serve. Evidence Code, section 952states: As usedin this article, “confidential communication between client and lawyer” meansinformation transmitted betweena client andhisor her lawyerin the course of that relationship and in confidence by a means which,so far as the client is aware, discloses the information to no third personsother than those who are presentto further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the 28 -accomplishmentof the purpose for whichthe lawyeris consulted, and includesa legal opinion formed and the advice given by the lawyerin the course of that relationship. ate Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874 (“OXY”) thus finds no waiver whenattorney-client- privileged documents and work product are disclosed among parties to a joint defense agreement such that the parties reasonably expect the communications to be maintained in confidence and disclosure is reasonably necessary to further the purposeof the legal consultation. OXYdiscusses the “commoninterest” or “joint defense” doctrines. Although these doctrines have been held to have independentexistence in other states, under California law, the commoninterest doctrine is a non-waiverrule: Applying these waiver principles in the context of communications among parties with commoninterests, it is essential that participants in an exchange have a reasonable expectation that information disclosed will remain confidential... In addition, disclosure of the information must be reasonably necessary for the purpose for which the lawyer wasconsulted... . Thus, for the commoninterest doctrine to attach, most courts seem to insist that the two parties have in common an 29 interest in securing legal advice related to the same matter — and that the communications be made to advancetheir shared interest in securing legal advice on that common matter. (OXY, supra, 115 Cal.App.4th at p. 891 [internal quotations omitted].) Thejoint defense agreement in OXY evidenced a reasonable expectation of confidentiality. So, too, the confidentiality agreement for the list serve — becauseall its participants agree to confidentiality. In fact, breach of that agreementis likely not just breach of contract but also cause for discipline underRules of Professional Conduct, rule 3-100, which requires attorneysto maintain client confidences. Moreover, sharing legal theories and advice amonglist-serve membersis necessary to the purpose for whichlist-serve members consult one another — in fact, shared legal advice is the very purposeof the list serve. List-serve participants are attorneys representing public entities with commonaninterest in securing legal advice relating to municipal revenuesand the League Memowasdrafted to serve that sharedinterest. The League Memois therefore attorney-client privileged and its distribution via the list serve does not waive that privilege. Il. ARDON’S COUNSEL’S REFUSAL TO COMPLY WITH THEIR ETHICAL DUTIES HAS TAINTED THIS CASE Havinglitigated this case since 2006, Ardon’s counsel 30 understood the privileged nature of the-material she received in response to her Public Records Act request and knew equally well the City’s long-standing claim of privilege as to those documents that lay out the city’s defense analysis of the underlying suit here. Therefore, Ardon cannot credibly maintain that the production of the privileged documents in response to a PRA request, of which the . City’s attorneys had no notice, was a deliberate waiver of the very privilege the City fought long and hard to protect. | Ardon attempts to minimize his counsel’s conduct, arguing: Plaintiff has not used the three documentsatissue... Indeed, as Judge Mohr, the original trial judge, stated, hadit notsettled, this action will likely be decided based uponstipulated facts and/or upon facts already admitted to by the City. (AnswerBrief, p. 4.) He also claims no harm was doneas the underlying class action hassettled. These arguments fail for at least five reasons. First, Ardon need notactually cite any of the privileged documents or seek to admit them into evidence to makeuse of opposing counsel’s impressionsandlitigation strategy, which is now indelibly in the hands (and minds)of his counsel. As the City’s OpeningBrief notes, a requirement to show actual injury would further prejudice the City, because it would entail revealing precisely how opposing counsel’s possession of the privileged documents hasprejudiced the 31 City’s case. The City eannot harmlessly respond to Ardon’s bald assertion “[t]he Three Documents do not implicate Defendant'strial strategy or analyze the potential testimony of any witness, nor will Plaintiff’s counsel’s review of the Three Documentsaffect the outcome of these proceedings.” (AnswerBrief at p. 33.) How can Ardon’s counsel know this? How could the City rebutit except by further describing what opposing counsel is unentitled to know? The conundrum here is notof the City’s making and the law should not impose on the City a duty to resolve it. Ardon’s counsel caused this harm; she should bear the burdento redressit. Second,if the privileged documents are really so worthless, whyhas counsel repeatedly refused return the originals, destroy copies, and refrain from using these materials in this litigation? (1 CT 155-156 [Declaration of Holly Whatley, [§ 11-14]; 1 CT 211; 1 CT 213-215; 1 CT 218-220; 1 CT 222-223.) If the ill-gotten gain were worthless, she would havereturnedit long ago rather than litigated in three courts her asserted right to keep it. Indeed, the very fact counsel has not only refused to return the privileged documents but has goneso far as to demand reproduction of the privileged documents in discovery (in addition to other documents identified in the City’s privilege log) demonstrates their value. (1 CT 203-209 [April 13, 2013 letter from Ms. Rickert to Ms. Whatley demanding 32 production of the privileged documents].)4 Incredibly, Ardon’s counsel maintains her disingenuous posture in this Court, claiming: “At the endofthislitigation, Plaintiff’s counsel will, if requested, return or destroy the Three Documentsat the City’s option.” (AnswerBrief, p. 11.) When this case is resolved, the documents, of course, will be of much less interest to the parties here — the League’s interests aside. Moreover, the City has already repeatedly demanded return and destruction of the documents at issue yet Ardon’s counselpersists in her refusal. Protection of inadvertently disclosed privileged material cannot depend on generosity of those who wrongly hold them; they alone cannot decide whatis privileged and whento return it. Their conduct must be guided by clear statements of the law enforceable by courts. Third, rather than stating that this case would likely be decided upon stipulated or undisputed facts (Respondent's Brief at p- 3; pp. 21-22), Judge Mohrsaid: Let metell you my guessis that you're going to be able to try this case on stipulated facts. I may be wrong about that. My guessis that’s where you’re goingto go. 4 Nor can the City be made whole by simply requesting a copy of the CD that Ardon’s counsel received in response to her records request, as the AnswerBrief suggests at p. 27, fn. 18. 33 (2 CT 284: 6-9 [JJan. 10, 2008 transcript].) However, even if Judge Mohr’s “guess” had beencorrect, trial on stipulated or undisputed facts would do nothing to diminishthestrategic value of the privileged documents prepared by defense counsel to analyze the very legal issues disputed here. Moreover,in citing Judge Mohr’s speculation, Ardon well knowsthat the City cannot respond by discussing the contents of the privileged documents. The attorney- client privilege in Ardon’s handshas becomea one-waystreet binding the City’s counsel but not Ardon’s, a tool to impair the City’s access to able counsel rather than to preserveit, with no basis in law orjustice. Fourth, Ardon would distinguish the City’s authorities as involving bad faith assertedly not in evidence here. (AnswerBrief at p- 33.) However, Rico v. Mitsubishi Motors (2007) 42 Cal.4th 807 did notinvolve findings of bad faith, but instead privileged materials obtained in uncertain circumstances.(Id. at p. 812.) This Court ordered disqualification there to “respect the legitimate interests of fellow membersof the bar, the judiciary, and the administration of justice.” (Id. at p. 818 [citations and internal quotations omitted].) Moreover, the City is not persuaded Ms.Rickert acted in good faith reliance upon herinterpretation of the Public Records Act, because after obtaining the privileged documents, she held them in secret for weeks before demanding the City produce them in discovery in an apparenteffort to avoid the taint associated with privileged 34 materialsthat had been inadvertently disclosed. (1 CT 154 [Declaration of Holly Whatley, {[ 8]; 1 CT 203.) Additionally, that the Public Records Act requestitself was lawful neither endorses or excuses counsel's conductafter the privileged documents were inadvertently disclosed. Moreover, a discovery request which leads to inadvertent disclosure of privileged material need not be unauthorized for the recipient to be obliged to return it. Fifth and finally, that the trial court has preliminarily approveda settlement in this matter’ does nothing to mitigate the continuing harm to the City and the League from opposing counsel’s continued possession of the privileged documents.First, the impact of Ardon’s unauthorized possession of the City’s defense analysis of this case on settlement cannot be known. Further, while settlement arguably cures harm to those who allegedly overpaid telephone tax to the City, the injury to the City remains. Every day counsel continues in possession of the privileged material compounds the damage. Once informationis divulged, the harm occasioned byits release cannot be undone; somebells cannot be unrung. And counsel’s self-serving claim that they did not use the documentsat issue in their motion to certify the class (AnswerBrief at p. 35) must be taken with a grain ofsalt. Even if true, they cannot 5 The trial court preliminarily approved settlement on August 13, 2015 — after the City filed its Opening Brief on the merits here. 35 not remedy the-loss of the City’s and the League’sprivileges. Ill. CO-COUNSEL SHARE ETHICAL OBLIGATIONS UPON INADVERTENT RECEIPT OF OBVIOUSLY PRIVILEGED MATERIAL Ardon seeks by footnote to insulate co-counsel from Ms. Rickert’s refusal to comply with herethical obligations under State _ Compensation Ins. Fund v. WPS (1999) 70 Cal.App.4® 644.(See, Answer Brief, p. 36, fn. 28.) The fourth sentence of that footnote states “[t]he Cuneo and Tostrudfirms were not given copies of the PRA documents,” but — unlike every other factual assertion in the footnote — is unsupported bycitation to the record. Even were there record evidence to support the claim, co-counsel need not have received copies of the privileged documents to learn of their content andthe nature of co-counsel relationships is such that they likely did.It is for this reason, disqualification is mandatory for all lawyers on the case. (See e.g., City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 850-54 [disqualifying entire city Attorney’s office because City Attorney represented adverse party as private counsel before election]; People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1154 [“This close, fluid, and continuing relationship, with its attendant exchanges of information, advice, and opinions, properly makes the of counsel attorney subject to the conflict imputation rule, regardless of whetherthat attorney has any financial stake ina particular 36 --matter.”) Of course, all Ardon’s counsel havea financial stake.in this contingency class action matter, making the rule of vicarious disqualification all the more necessary. IV. ARDON’S COUNSEL MUST RETURN THE PRIVILEGED DOCUMENTS AND DESTROYALL COPIES The City’s original motion soughtboth the return of the — privileged material and disqualification of counsel. Thus, evenif this Court concludes disqualification is not warranted, based on either the underlying facts orin light of the recent preliminary approval of a settlementbythetrial court, reversal is appropriate to order Ardon’s counselto return the privileged documents, destroy all copies — includingelectronic copies — and refrain from disclosing any portion of such documents or using them on behalf of anyclient to the detrimentof the City or any memberofthe League. The return of the documents cannot dependonthe “grace” of Ardon’s counsel. Vv. CONCLUSION For the foregoing reasons, the City respectfully requests that this Court to order the Superior Courtto vacate its order and to issue a new order compelling Ardon’s counselto the return the privileged documents, destroy all copies, and refrain from disclosing the contents or using these materials on behalf of any client to the 37 detriment of the City or of any memberof the League. Further,if, at the time of this Court’s decision on the matter, final approval of the pendingsettlement has been denied, the City requests thatthis Court order the Superior Courtto disqualify plaintiff's counsel from further representation of the class. DATED: August 26, 2015 Respectfully submitted, COLANTUONO, HIGHSMITH & WHATLEY, PC Hhblu MICHAELG. COLANTUONG HOLLY O. WHATLEY AMY C. SPARROW Attorneys for DefendantCity of Los Angeles 38 CERTIFICATE OF WORD COUNT Counsel of Record herebycertifies that pursuantto Rule 8. 520(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 7,657 words, which is less than the 8,500 words permitted by that rule. Counsel relies on the word count of Word 2010, the word-processing software used to prepare thisbrief. DATED: August 26 , 2015 COLANTUONO, HIGHSMITH & WHATLEY, PC HOLLY O.GLME Attorneys for Defendant City of Los Angeles SERVICELIST California Supreme Court Case No. $223876 Court of Appeal Case No. B252476, Trial Court Lead Case No. BC363959 [Related to Case Nos. BC404694 and BC363735] 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 610 649-3633 fax Jonathan W. Cuneo William Anderson Cuneo Gilbert & 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 Attorneys forTracfone Wireless, BC 363735 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 NoreenS. Vincent Office of the City Attorney 200 North Main Street, Suite 920 Los Angeles, CA 90012 213 978-7726 213 978-7711 fax 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 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 CERTIFICATE OF SERVICE I, Bernadette V. Morgan, the undersigned, declare: 1. That declarant is and was,at all times herein mentioned, a citizen of the United States and a resident of the State of California, over the age of 18 years, and not a party to or interested in the within action; that declarant's business address is 300 S. Grand Ave., Suite 2700, Los Angeles, California 90071. 2. That on August26, 2015, declarant served Defendant's REPLY BRIEF ON THE MERITS in Ardon v. City of Los Angeles, No. 5223876 via electronic mail to the parties listed on the attached ServiceList. I electronically transmitted a copy of the within documentin a pdf or word processing format to those persons noted at their respective electronic mailbox addresses provided to Lexis File & ServeXpress pursuant to California Rules of Court, rule 2.251, subd. (g) on the date set forth above. 3. That there is regular communication betweentheparties. I declare under penalty of perjury that the foregoing is true and correct. Executed on this 27th day of August, 2015 at Los Angeles, California. No. BERNADETTE V. MORGAN Francis M. Gregorek Rachele R. Rickert . Marisa C. Livesay WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 750 B Street, Suite 2770 San Diego, CA 92101 619/239-4599 619/234-4599 (fax) gregorek@whafh.com rickert@whafh.com livesay@whath.coni Daniel W. Krasner WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 270 Madison A venue New York, NY 10016 212/545-4600 212/545-4653 (fax) krasner@whath.com Nicholas E. Chimicles Timothy N. Mathews CHIMICLES & TIKELLIS LLP One Haverford Centre 361 West Lancaster Avenue Haverford, Pennsylvania 19041 610/642-8500 610/649-3633 (fax) nicholaschimicles@chimicles.com timothymathews@chimicles.com Jonathan W. Cuneo CUNEO GILBERT & LADUCA, LLP 507 C Street, NE Washington, DC 20002 202/789-3960 202/789-1813 (fax) jon@cuneolaw.com wanaerson@cuneolaw.com Service List Jon Tostrud TOSTRUD LAW GROUP,P .C. 1925 Century Park East, Suite 2125 Los Angeles, CA 90067 310/278-2600 310/278-2640 jtostrud@tostrudlaw .com 21591 Noreen S. Vincent Beverly Cook - OFFICE OF THE CITY ATTORNEY 200 North Main Street, Suite 920 Los Angeles, CA 90012 213/978-7760 213/978-7714 (fax) noreen. vincent@llacity.org- beverly.cook@facity.org
