COUNTY OF LOS ANGELES BOARD OF SUPERVISORS v. S.C. (ACLU OF SOUTHERN CALIFORNIA)

Real Parties in Interest, ACLU of Southern California and Eric Preven, Petition for Review

Cal.May 26, 2015

S9266 4D SUPREME COURT FILED MAY 2 62015 No. S IN THE SUPREME COURT Frank A. McGuire Clerk OF THE STATE OF CALIFORNIA Deputy COUNTY OF LOS ANGELES BOARD OF SUPERVISORSet ai., Petitioners, V. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; ACLU OF SOUTHERN CALIFORNIAetal., Real Parties in Interest. Review after Order Denying CPRA Request Second Appellate District, Division Three, Case No. B257230 Los Angeles County SuperiorCourt, Case No. BS145753 (Hon.Luis A. Lavin) PETITION FOR REVIEW Peter J. Eliasberg (SBN 189110) Jennifer Brockett (SBN 193433) ACLU FOUNDATION OF *Rochelle L. Wilcox (SBN 197790) SOUTHERN CALIFORNIA Colin D. Wells (SBN 286684) 1313 West 8th Street DAVIS WRIGHT TREMAINE LLP Los Angeles, CA 90017 865 S. Figueroa, Suite 2400 Tel.: (213) 977-9500 Los Angeles, California 90017 Fax: (213) 977-5299 Tel: (213) 633-6800 . Fax: (213) 633-6899 Attorneysfor Real Parties in Interest ACLU OF SOUTHERN CALIFORNIA and ERIC PREVEN No. §S IN THE SUPREME COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES BOARD OF SUPERVISORSetal., Petitioners, V. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; ACLU OF SOUTHERN CALIFORNIAetal., Real Parties in Interest. Review after Order Denying CPRA Request Second Appellate District, Division Three, Case No. B257230 Los Angeles County Superior Court, Case No. BS145753 (Hon.Luis A. Lavin) PETITION FOR REVIEW Peter J. Eliasberg (SBN 189110) Jennifer Brockett (SBN 193433) ACLU FOUNDATION OF *Rochelle L. Wilcox (SBN 197790) SOUTHERN CALIFORNIA Colin D. Wells (SBN 286684) 1313 West 8th Street DAVIS WRIGHT TREMAINE LLP Los Angeles, CA 90017 865 S. Figueroa, Suite 2400 Tel.: (213) 977-9500 Los Angeles, California 90017 Fax: (213) 977-5299 Tel: (213) 633-6800 . Fax: (213) 633-6899 Attorneysfor Real Parties in Interest ACLU OF SOUTHERN CALIFORNIA and ERIC PREVEN TABLE OF CONTENTS Page ISSUE PRESENTED FOR REVIEW ou... cccccccsessecssesssceseeeseccsessesesessssseesenes 1 REQUEST FOR REVIEW 0... ccccccssscssecsreesecessessssssceseseaeseseceseseesssesseassesenss2 STATEMENT OF THE CASE..u.....ccccccsscccessccsseessecssseceeeseeeesssnesssevssseeavess6 A. The Excessive Force Litigation against the County................6 B. The County Refuses to Disclose Billing Records............000.9 C. The Respondent Court Orders Disclosure of the Billing RECOIS, 0... eeceseeccessecesessscsecesesseecsecseeessssaeesseessscstsstessseassnesans 10 D. The Court of Appeal Reverses, Holding that Billing Records Are Absolutely Privileged. ..........cccccsesesssseeseeeees 11 REVIEW IS NECESSARY TO SECURE UNIFORMITY OF DECISION AND SETTLE AN IMPORTANT QUESTION OF LAW ouiceeeseteeeeeseeseeeesecenecsesssecsesseecnsesesssseeessesesasersereserens 12 A. The Court ofAppeal Broadly Interpreted Evidence Code § 952, Contrary to Article 1, § 3(b)’s Narrow Construction Mandate...0.......cccesceseescsssesscesetssstssesseseseeneeneens 13 B. The Court of Appeal’s Expansion of the Scope of the Attorney-Client Privilege Is Contrary to Decades of LAW, o..eeesesesscssccssceneecssceesseeescesssesenaestaessnesseecsseseasessseeceseseneenes 18 1, The Attorney-Client Privilege Exists to Promote Full and Open Communications. ...........cccccccseesseseees 18 2. Invoices Are Not Privileged Because Their Purpose Is Not to Further the Legal Representation,..........cscecseccssecessesseeseresssessseascseseessenes22 3. For Decades, California Courts Have Operated on the Assumption That Invoices Are Not Privileged. 0... eicecessseceeeeseeeessescectessssecsssessesecssensens26 4. The Court ofAppeal’s Reasons for Rejecting ACLU’s Arguments Do Not Withstand SCTUUINY. oes eeeescesescesecseeseeeeeeseeesesresseessasesseseseseessensers31 C. The Appellate Opinion Turns the CPRA and Constitutional Presumptions of Access Upside Down..........35 CONCLUSION1... eeccecesescesesseeeseceaessecesecseresseceeeeseeeseeesssesesssesetesssssesesses37 TABLE OF AUTHORITIES Page(s) ’ CASES Bakersfield City School Dist. v. Superior Court (2004) 118 Cal.App.4th 1041oocceccsssecesssssesccsssesssessseseeeeswee 13 Bell v. Vista Unified School District (2000) | 82 Cal.App.4th 672......ccccccsccsssccscsscsscccsssesssecessecescesesssssesescsescnsees 28 Calif. State Univ:, Fresno Ass’n v. Superior Court (2001) 90 Cal.App.4th 810... ccccsssscsscssccccssssececesssestsscsssscsseersseseenss 14 CBS, Inc. v. Block (1986) 42 Cal.3d 646... cccecesscsssccestsccssecsssssscessceceessassVeseeesessenes 13, 14, 15 Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 CalAth 278... cccccccccscccesssssssssscceccssnscnsececcccucsesecessscusesssscenseeess 36 ~ ComputerXpress, Inc. v. Jackson (2001) 93 CalApp.4th 993.00... cessssscssscssesssesesscsvesssereees deseeeeseeessnscecesees 28 Concepcion v. Amscan Holdings, Inc. (2014) ~ 223 Cal.App.4th 1309.00... ccccesssssssessesssessecssscesscsssrsvssescseeeees passim Copley Press, Inc. v. Superior Court (1998) | 63 Cal.App.4th 367............ bonesseueseeseccesescssccecesecsussssscesssetsnsssesessesens 15 Costco Wholesale Corp. v. Superior Court (200°) AT Cal.4th 725 ou. ccccesccsccccscsccesecssstsceesercsacccecsnassascecesssevenssseoes passim County ofLos Angeles Board ofSupervisors v. Superior Court (2015) 235 Cal.App.4th 1154... ececssessesessessessscessecssesssssssvssssssees passim County ofLos Angeles v. Superior Court (Anderson- Barker) (2012) 211 Cal.App.4th 57...ccccccccsssessssesssssssssesessseecesuesssseeseeseeevais 3, 25, 26 ii D. I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723 0. essessssseeecsesnecneeneesntssneeeessensesnsesssessnessesensessessers 23 Davis v. Los Angeles W. Travelodge (C.D. Cal. Dec. 21, 2009) 2009 WL 5227897 oo... esescsssesecssceecceseesseessessessessenessesssceesssssessnees 30 Flannery v. Prentice (2001) 26 Cal.4th 572... cc ccccscsesscnsseesecssescescscsssessesssseseesecsseusseseesessssesaces 32 Folsom v. Butte County Ass’n ofGov’ts (1982) 32 Cal.3d 668...eccecesessecsscescesssssessesessecsecessssseesscscssceessssersseves 32 Gordon v. Superior Court (1997) 55 Cal.App.4th 1546.0. ccsscsssssssssesscssscssesesessssssscssssscesscsscsees 20 In re DonaldR. (1993) 14 Cal.App.4th 1627.00... cucsccssssssecsessesceserseesscssssesscssssssssesessesens 29 Int’! Federation ofProfessional & Technical Engineers v. Superior Court (2007) A2 Cal.4th 319.eccseesesssteesessseeeees eesonversosensesseessseseaes 13, 15, 36 Ketchum v. Moses (2001) 24 Cal.4th 1122ceccsscerseesseesseesessnevsessesssseessessesssneeses 27, 29 Lindelli v. Town ofSan Anselmo (2006) 139 CalApp.4th 1499.ccccscsssssssseeersesssesssseseensseeseesaeeeseeeees 32 Maria P. v. Riles (1987) A3 Cal.3d 1281] ..c.ccsececsscssssssssssesscssesvseseseeees seeeeeneeneteneesseseneneneenes 27 Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242.0... isssessessesessenesseereseesneenseseessensessssesseens 21 McCownv. City ofFontana (9th Cir. 2009) SO5 F.3d 1097 .ecsecsessseeceessseessseeseearenreentesessesaseneecnsessnisrnneesessessies 30 Mitchell v. Superior Court (1984) 37 Cal.3d S91eeeeeseesscecssecssecssesesseesescsssssssseeseseeseceeeenensse passim PLCM Group, Inc. v. Drexler (2000) . 22 Cal.4th 1084.0.eeessescesecsesssecescesecsseesssssesssseseeeesersreeessees 27 ili Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311eeecccsssecensecessrseeesneeeesseseceessecesseeseseessetasteeesaeens 27 Register Div. ofFreedom Newspapers, Inc. v. County of Orange(1984) 158 Cal.App.3d 893oececscccssessscsssssssccssecssscsessscssssssscssceesesees 16 San Diego Union v. City Council (1983) | 146 CalApp.3d 947oiceccsscssssccssrsessesessecessseesserssessessscsscsseeeesnees 15 San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762.0... sssscsssecssscsssssessssecsseeesscssessssesssssccsssesenees 16 Serrano v. Priest (1977) 20 Cal.3d 25 vee eeeesssscsscesscsseeesseecsssssssseessecesssesssesssssssessesenss passim Serrano v. Unruh (1982) 32 Cal.3d 621eeesseesssecsseessseesesssseeeseesssessscseesessesscseasessssases 27 Sierra Club v. Superior Court (2013) ST Cal.4th 157ee eeeeseecsscssssseccsssccssecescsscessecesseessecsssascesseessssesaceas 15 Solin v. O'Melveny & Myers, LLP (2001) | 89 Cal.App.4th 451ccscssnseccssessessesssscesseessecsssssussscsstssensonees 19 Sonoma County Employees’ Retirement Ass’n v. Superior Court (2011) 198 Cal.App.4th 986.0... cecescceeseeeeVaseeseeeeesaecessesseeeseesseensessasens 16 Southern Cal. Gas Co. v. Public Util. Com. (1990) . 50 Cal.3d 31 oo.ee eesssssecseesceesecsseecesessessessseseesereeseeassscssenscsesestsasaes 33 Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691oececsssecsssseescssessecesseeseessssscseesssees sesseceveee 5 Thirteen Committee v. Weinreb (1985) | 168 Cal.App.3d 528occecsssccssescsssessestecssscesecersssssssssssesseescesees 20 Tornay v. U.S. (9th Cir. 1988) 840 F.2d 1424 ooeescscesnececsssessesssessessseceseeessssessscsnsusssescesses 30 Travelers Ins. Cos. v. Superior Ct. (1983) 143 Cal.App.3d 436... cescssscssstessssssesseessscesssessesesseesssssssesonaees 34 iv Wellpoint Health Networks, Inc.v. Superior Court (1997) 59 Cal.App.4th 110... eesesssesseessesssesssessssesseesssscsecssessesseseess 33 Wilkoffv. Superior Ct. (1985) 38 Cal.3d 345eeeeeccessseccsssssscsseceeceecsssesestecesseeseessscsessssesseeesens 29 Willis v. Superior Court (1980) 112 CalApp.3d 277oceeeecccesssssscsccessescsssessseecessesesessscsesssessseeesses 20 Zimmerman v. Superior Court (2013) 220 Cal.App.4th 389)... cccccscscssecsscssscessesseeesssceecescsusseessecsssensees 21 STATUTES California Business and Professions Code § 6149 .....cccceceeseeseesees 10 California Code of Civil Procedure § 425.16 ........ceecccccseceseeeees 28, 32 California Evidence Code § 952 ....ccccsseesesesnereeseeerereenensees passim California Government Code - $6250 oeeececceseesecesneecssneccessesecesecssseceeneeesnesessesensesscsressusenes 13, 14 § 6253(a)... eeeeccsseesccssnsecsssneeceseessccesecsecessesessreceessesssseesstessessseceses 15 § 6254(D)......ceecccessesscesseceeseeceeseeensens seceesaeenseeesneecsscesseseesaeeestenseeceees 25 § O254(K)..... ee eecesseseccsscessseeecesseessesssceeuscssseseseeeesscessssesseseasssrsessnseess 9 § 6255(a) on. eeesseessescccessescssseecescessesesenseseessesssseeseaseeeteessasenssseeeess 9,10 § 12965 ooeee eeesceeceesteseessteecetsesseesssceesecsaecesueecesseesssesersesstesseensas 32 RULES California Rule of Court 8.500(b)(1)........... eseseesevesesesessusssesessseesescess 12 California Rules of Professional Conduct Rule 3-100... 31 CONSTITUTIONAL PROVISIONS- California Constitution Article 1, § 3(b).....eeeteessteeeseeeeees passim OTHER AUTHORITIES Annual Litigation Cost Reportfor Fiscal Year 2012-2013 (“Cost Report’). UL ..iccscessscccssssssescscsecesscssscsssssseesesessnscseeseeenecsseensees 8 ISSUE PRESENTED FOR REVIEW Are invoices for legal services sent to the County of Los Angeles by outside counsel within the scopeofthe attorney-client privilege, and absolutely exempt from disclosure under the California Public Records Act, even with all references to attorney opinions, advice and similar information redacted? REQUEST FOR REVIEW TO THE HONORABLETANI CANTIL-SAKAUYE, CHIEF JUSTICE OF THE STATE OF CALIFORNIA, AND THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: This Petition for Review presents an issue raised by former Chief Justice George in his concurring opinion in Costco Wholesale Corp.v. Superior Court (2009) 47 Cal.4th 725, 741-744 (“Costco’’), but not resolved there: Is everything transmitted between attorney andclient absolutely privileged, without regard to the content or purpose of the communication? Or does the privilege protect only legal opinions, advice, and other information communicated for the purpose of advancing the legal representation? Ina published opinion, the Court of Appeal for the Second Appellate District, Division Three, held that everything transmitted between lawyer and client is absolutely privileged, so long as it is transmitted in confidence. County ofLos Angeles Board ofSupervisors v. Superior Court (2015) 235 Cal.App.4th 1154 (“County ofLos Angeles’). In doing so, the Court rejected the California Public Records Act (“CPRA”)! requestsent by Petitioners ACLU of Southern California and Eric Preven(collectively, ' Gov’t Code § 6250, et seq. “ACLU”) to the Los Angeles County Board of Supervisors (“Board of Supervisors”), which sought redacted copies of outside counsel invoices to the County, holding that even redacted invoices are absolutely privileged. The Court’s decision is contrary to a decision from Division Eight of the Second District, which held that attorney invoices must be disclosed under the CPRA. County ofLos:Angeles v. Superior Court (Anderson- Barker) (2012) 211 Cal.App.4th 57, 67 (“Anderson-Barker’”) (invoices not exempt because their dominant purposeis notfor use in litigation). In rejecting Anderson-Barker as inapposite (235 Cal.App.4th at 1166-1167), the Court ofAppeal overlooked the fundamental difference between invoices — whichtypically are sent to procure paymentfor legal services — and other attorney-client communications — which typically are sent to advancethe legal representation. The Court also broadened the scope of Evidence Code § 952, to include information no published California decision previously hasheld to be absolutely privileged, - notwithstanding the constitutional mandate that courts narrowly construe statutes that restrict the public’s access to public records. Cal. Const. Art. 1, § 3(b). Asdiscussed below,attorney invoicesare treated differently from advice, opinions and other information transmitted for the purpose of advancingthe legal representation, and routinely disclosedin fee litigation. Thus, the Court has created a legal regime in which the only reallosers will 3 be CPRA requesters like the ACLU, whoare trying to bring accountability to governmentuse ofpublic funds. Tens of millions of dollars have been spent by the County defending against detainee abuse cases. II PE 5:351- 360. Now, however, the public will be unable to fully evaluate that tremendous expenditure — or any other government expenditure for legal fees. If agencies are given carte blanche to decide when and where to disclose invoice information, they will waive privilege and use invoicesas a sword whenit benefits them — for example, to contend that opposing counsel’s requested fees are unreasonable becausetheir lodestar is far larger than what the agency lawyers incurred in the same proceeding — but invoke the privilege as a shield when they have somethingto hide. The CPRA and Article 1, Section 3(b) of California’s Constitution flatly reject that result. The Court’s holding that legal invoices are absolutely privileged also threatens towithdraw from trial courts the mostreliable evidence ofthe reasonableness of a fee request, making a difficult task for trial courts even more challenging. This Court recently acknowledged the importance of connecting fee awardsto actualtime billed by counsel in granting review in Lafitte v. Robert HalfInt’l, Inc., $222996, which presents the issue of whether “Serrano v. Priest (1977) 20 Cal.3d 25 [“Serrano III’] permit[s] a trial court to anchorits calculation of a reasonable attorney’s fees award in a class action on a percentage of the commonfund recovered?” The 40 foundational premise of Serrano III — that fee awards begin with a lodestar, calculated based on careful review ofattorney time spent on a matter (20 Cal.3d at 48-49) — will be upendedif attorney invoicesare absolutely privileged and fee movants have complete discretion in deciding whether to submit them to the court. | The Court of Appeal dismissed this concern, believing clients would simply waive the privilege to pursue a fee award, or that fee motions could be supported by something otherthan the actual invoices. County ofLos Angeles, 235 Cal.App.4th at 1177. But neither supposition withstands scrutiny. The client may choose not to waive privilege, and because invoices are not strictly necessary for fee motions(e.g., Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 698-699),it is unlikely the courts will find implied waiver. The Court of Appeal’s Opinion would, however, denytrial courts the right to demand more detailed information, including attorney invoices, to support a fee request. Cf, Concepcion v. Amscan Holdings, Inc. (2014) 223 Cal.App.4th 1309, 1325 (“Concepcion”) (affirming order requiring disclosure of invoices). In addition, offering a substitute — such as attorney time sheets or a detailed declaration — may not be a viable alternative if disclosure of a substantial part of a privileged communication waivesthe privilege. Mitchell v.Superior Court (1984) 37 Cal.3d 591, 602-602. Andevenifthe Court is correct, and the underlying informationis notprivileged, this only 5 highlights the fact that the Court has exalted form over substance and,in the end, its Opinion will only protect government agencies that hope to evade public scrutiny. The ACLUrespectfully requests that the Court grant review and reverse the Court ofAppeal’s Opinion,to “secure uniformity of decision” and.“settle an important question of law.” The appellate court’s expansion of the attorney-client privilege will create tremendous uncertainty for trial courts andlitigants as they struggle to apply the new, incorrect, standard. It will result in a skewed systemin which the public has noright to evaluate the best evidence of the government’s huge expenditures on outside counsel, but government agenciesretain the right to use those documents in any way they choose, contrary to the very purpose of the CPRA andArticle 1, Section 3(b). STATEMENT OF THE CASE A. The Excessive Force Litigation against the County. In December 2013, the United States Attorney’s Office for the Central District of California announced it hadfiled five criminal cases against eighteen current or former Los Angeles County deputy sheriffs for, amongotherthings, unjustified beatings ofjail inmates andvisitors. III PE 5:687-688. The U.S. Attorney stated the alleged incidents “demonstrated behavior that had becomeinstitutionalized.” Jd. Two monthslater, two 6 more Los Angeles County Sheriff's deputies were indicted for repeatedly assaulting an inmate withoutjustification. III PE 5:691. Overthe past few years, current and formerjail inmates havefiled numerous lawsuits against the County and individual sheriffs deputies for alleged excessive force. II PE 5:359. The County has retained a numberof law firms to defend against these suits. E.g., II PE 5:455, 5:482; III PE 6:709-710. Some ofthese firms have been accused of engaging in overly aggressive “scorched earth”litigation tactics and dragging out cases even when a reasonable settlement was possible. II PE 5:424 (describing the County’s “aggressive litigation tactics”); id. at 5:476 (Court advised counsel, “I’m troubled by [the County’s outside counsel’s] inability to represent your client at this moment. I’m very deeply troubled.... Have the County Counselbe present because I believe she would be deeply disturbed if she understood what was going onin this case.”’); II] PE 5:694- 695 (“Plaintiffs in Jail Force Suits Decry ‘Scorched Earth’ Defense Tactics,” Daily Journal, September 17, 2013). Some cases haveresulted in large verdicts for plaintiffs against the County, in addition to punitive damages awards against Sheriff's Department personnel, including former Sheriff Lee Baca. E.g., II PE 5:482-485 ($2.6 million judgment); id. at 487-498 (awarding $125,000 in compensatory damagesand finding Sheriff liable for punitive damages); id. at 500-505 (awarding $950,000 judgment and finding numerousSheriff's Department personnel liable for punitive damages). On January 2, 2014, the Office of County Counsel provided the Board of Supervisors with its Annual Litigation Cost Reportfor Fiscal Year 2012-2013 (“Cost Report’). II PE 5:351-356. It stated that the County paid $89 million in judgments, settlements, and attorneys’ fees during the fiscal year. Id. at 352. The Sheriff's Department alone wasresponsible for more than $43 million ofthoselitigation expenses. Id. at 354. According to additional information released by then-County Supervisor Gloria Molina, the County paid $20 million in litigation expenses during the 2012- 2013fiscal year solelyfor excessive force cases. Id. at 358-60. More than $5 million of that amount was to defend against accusations of excessive force while plaintiffs were in custody. /d. at 359. Last year, Supervisor Molina highlighted one of the manyreasons the multimillion dollar burden of defending against lawsuits alleging the use of excessive force is such an important public issue: Every dollar spent on lawsuits is a dollar that could go toward vital public services .... § The $43 million in legal costs stemming from Sheriff's Department mismanagement comprise nearly one-half of the county’s total litigation expenditures — and comeclose to the $46 million cost of litigation for all other departments combined. Excessive force cases alone cost taxpayers $20 million; up $7 million from last year.... Id. B. The County Refuses to Disclose Billing Records. In light of the importance of understanding how the County spends taxpayer money to defend against accusations of excessive force, on July 1, 2013, the ACLU sent a CPRA request to the Countyto obtain “[i]nvoices that specify the amounts that the County has beenbilled by any law firm in connection with nine specific actions brought by inmatesthat alleged jail violence.” IPE 1:5, 13-182 _ On July 26, 2013, County Counsel John Krattli responded to the ACLU’s CPRA request, stating that his office identified documents responsive to the request for legal invoices in the nine cases identified. Id. at 6, 24-27. Mr. Krattli said, however, that the County would produce only redacted invoices for cases that were no longer pending, and would not produce any invoices relating to the cases that werestill pending. JdHe based his refusal to produce these invoices on Government Code §§ 6254(k) and 6255(a). Id. | On September 9, 2013, Mr. Krattli sent a letter enclosing documents | purportedly related to the three cases that were no longer pending. Jd. at 6, 29. The documents were heavily redacted and did not contain any descriptions ofwork performed by any attorney — only billing rates, hours billed and billing totals. I PE 4:92-93. As Mr. Krattli indicatedin his July * The ACLUaskedfor two other categories of documents; neitheris at issue here. 26, 2013 letter, he did not include documents responsive to any other requests. Jd. C. The Respondent Court Orders Disclosure of the Billing Records. | On October 31, 2013, the ACLU filed its petition for writ of mandate. I PE 1:1. On June 5, 2014, the respondent court granted the ACLU’s petition,” finding that Business and Professions Code § 6149 (which provides that attorneyfee agreements are privileged) did not apply to billing records, as “the statute clearly distinguishes between written fee agreements and billing statements.” III PE 10:774. The court further held that the County had “not alleged any specific fact demonstrating why the billing statements, with proper redactions concealing actual attorney-client privileged communicationsor attorney work-product, would qualify as privileged communications exempt from disclosure under Evidence Code section 952.” Id. at 775. Finally, the court found that the County had “failed to satisfy its burden of demonstrating a clear overbalance in favor of not disclosing the billing statements” underthe so-called “catch-all” exception in Government Code § 6255(a). Id. at 776. The court ordered disclosure ofthe billing records for the nine lawsuits identified in the ACLU’s CPRA request, explaining, “[t]o the extent these documentsreflect an attorney’s legal opinion or advice, or > The court deniedthe petition in part with respect to one argument not at issue in this proceeding. 10 reveal an attorney’s mental impressionsor theories of the case, such limited information may be redacted.” Jd. at 778. D. The Court of Appeal Reverses, Holding that Billing Records Are Absolutely Privileged. The County filed a petition with the Court of Appeal, seeking a writ of mandate directing the respondentcourt to vacate its June 5, 2014 Order. On April 13, 2015, a unanimouspanel granted the County’s petition and directed the Superior Court to vacate its order. County ofLos Angeles, 225 Cal.App.4th at 1178. The court held that the invoices are exempt from disclosure under the CPRA becausethey are “confidential communications within the meaning of Evidence Code section 952.” Jd. at 1160. After | evaluating the language of Section 952 and Petitioner’s discussion of the legislative history for a 1967 amendmentto the statute, the Court concluded that under Evidence Code § 952, “confidential communication” encompassesail transmittals of information between a lawyerandherclient so long as they were madein confidence, not only those containing a legal opinion or advice. Jd. at 1170-1171. The Court believedits conclusion was mandatedbythis Court’s . decision in Costco, which, the Court said, “teaches that the proper focus in the privilege inquiry is not whether the communication contains an attorney’s opinion or advice, but whether the communication was confidentially transmitted in the course ofthat relationship.” Jd. at 1174 I] (citing Costco, 47 Cal.4th at 733). Thus, the Court rejected any suggestion that the nature of the documentbeing transmitted is relevant, concluding that all confidential transmissions within the attorney-client relationship are privileged, without regard to content. Jd. The ACLUdid not file a Petition for Rehearing. REVIEW IS NECESSARY TO SECURE UNIFORMITY OF DECISION AND SETTLE AN IMPORTANT QUESTION OF LAW This Court may order review “to secure uniformity of decision or to settle an important question of law.” Cal. Rule Ct. 8.500(b)(1). Here, the Court should grant review because the Court ofAppeal’s broad construction of Evidence Code § 952 — which denied the ACLUaccessto redacted attorney invoices — is contrary to the narrow construction required by the California Constitution and the CPRA,and ignores decades of law treating this information as unprivileged, which has formedthe basis of this Court’s fee motion jurisprudence. It invites gamesmanship by government agencies, which routinely reveal this non-sensitive information whenit suits their purposes, but now can withhold it when they do not want to let the public scrutinize their expenditure ofpublic funds. 12 A. The Court of Appeal Broadly Interpreted Evidence Code § 952, Contrary to Article 1, § 3(b)’s Narrow Construction Mandate. The Court ofAppeal’s decision should be reversed becauseit did not follow the constitutional mandate to narrowly construe statutes that limit the public’s right of access to government records (Cal. Const. Art. 1, § 3(b)), and instead expandedthe attorney-client privilege to reach information that has been treated as unprivileged for decades. Nearly fifty years ago, the California Legislature enacted the CPRA, whichdeclares that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” Gov’t Code § 6250.. As this Court explained in CBS, Inc.v. Block (1986) 42 Cal.3d 646, 651-652, the CPRA wasdesigned to promote “[m]Jaximum disclosure of the conduct of governmental operations.” See also Bakersfield City School Dist. v. Superior Court (2004) 118 Cal.App.4th 1041, 1045 (“[t]he CPRA embodiesa strongpolicy in favor of disclosure of public records”), In Int'l Federation ofProfessional & Technical Engineers v. Superior Court (2007) 42 Cal.4th 319 (“Int’7] Federation”), this Court emphasized the importance ofpublic access to governmentinformation: Openness in governmentis essential to the functioning of a democracy. Implicit in the democratic processis the notion that governmentshould be accountable for its actions. In order to verify accountability, individuals must have access to governmentfiles. Such access permits checks against the 13 arbitrary exercise of official power and secrecyin thepolitical process. Id. at 328-329 (citing CBS, 42 Cal.3d at 65). In 2004, 83 percent of California voters approved Proposition 59, amending the state Constitution to recognize the public’s right of access to government information. Article I, § 3(b) of the Constitution now affirms that “[t]he people have the right of access to information concerning the conduct of the people’s business,” and guarantees that “the writings of public officials and agencies shall be open to public scrutiny.” (Emphasis added.) As amended, the Constitution mandates that any statute “that furthers the people’s right of access” — such as the CPRA — “shall be broadly construed,” while anystatute “that limits the right of access” — such as the Evidence Code provisionsat issue here — must be “narrowly construed.” Jd.,; see also Calif: State Univ., Fresno Ass’n v. Superior Court (2001) 90 Cal.App.4th 810, 831 (“[s]tatutory exemptions from compelled disclosure are narrowly construed”). This Court recently reiterated this fundamental premise, declaring that “[g]iven the strong public policy of the people’s right to information concerning the people’s business (Gov. Code, § 6250), and the constitutional mandate to construe statutes limiting the right of access narrowly (Cal. Const., art. I, § 3, subd. (b)(2)), allpublic records are subject to disclosure unless the Legislature has expresslyprovided to the 14 contrary.” Sierra Club v. Superior Court (2013) 57 Cal.4th 157, 166-167 (citations, internal quotes omitted; emphasis added). The CPRA also ensures the public will have access to as much information as possible by directing that “[a]ny reasonably segregable portion ofa record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.” Gov’t Code § 6253(a). Thus, “[t]he fact that parts of a requested document fall within the terms of an exemption doesnotjustify withholding the entire document.” CBS, 42 Cal.3d at 653 (citation omitted). Agencies must segregate privileged from non-privileged information, and disclose everything that is not privileged. Jd. These principles should have carried the day here. California courts long haveinsisted that the public has a right to know how government uses — or misuses — taxpayer money. As one court explained, “[i]t is difficult to imagine a morecritical time for public scrutiny ofits governmental decision-making process than whenthelatter is determining how it shall spend public funds.” San Diego Union v. City Council (1983) 146 Cal.App.3d 947, 955; accord Copley Press, Inc. v. Superior Court (1998) 63 Cal.App.4th 367, 376(“the public has a legitimate interest in knowing how public funds are spent”). Courts routinely require the disclosure of records that provide details regarding how public moneyis spent. See, e.Z, Int'l Federation, 42 Cal.4th at 339 (namesandsalaries ofpublic employees 15 earning $100,000 or more per year not exempt because “the public has a strong, well-established interest in the amountof salary paid to public employees”); Sonoma County Employees’ Retirement Ass’n v. Superior Court (2011) 198 Cal.App.4th 986, 1005 (recipients and amounts of pension benefits paid by county retirement system not exempt); Register _ Div. ofFreedom Newspapers, Inc. v. County ofOrange (1984) 158 Cal.App.3d 893, 909 (county must disclose documentsrelating to a settlement agreementdue to the “public interest in finding out how decisions to spend public funds are formulated and in insuring governmental processes remain open and subject to public scrutiny”); San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762, 776 (ordering disclosure of documents relating to approvalofrate increase under an exclusive contract because it “amounted to a 15 to 25 percent increase in just two years that the public — not the City — would haveto pay”). These principles apply with equal force to attorney billing and paymentrecords. Indeed, the public interest in understanding government spendingis particularly acute when that moneyis spent to defend against lawsuits relating to allegations of excessive force by County employees — itself a matter of tremendous public interest. And here, the billing records are particularly important because of the public debate about whetherthe law firmsretained to defend the County have employed“scorched earth” 16 litigation tactics, which may drive up the defense costs borne by taxpayers without any corresponding benefit in the case. I] PE 5:424. The County hasalso been accused of refusing reasonable settlements, only to have large judgments awardedto plaintiffs. Jd. See also I PE 5:150-153 (discussing ACLU’sefforts to focus attention on mistreatmentof inmates). The Court of Appeal did not follow the mandate ofArticle 1, Section 3(b). Although the Court acknowledged the requirementto narrowly construe statutes that limit the public’s right of access, it believed this mandate did not apply because the invoices purportedly “fall within the express parameters of Evidence Code section 952.” County ofLos Angeles, 235 Cal.App.4th at 1176. But in so holding, the Court missed the point. As . the Court acknowledged,its interpretation expanded Section 952 to reach a type of information — attorney invoices — that no California court had previously held to be privileged. Jd. at 1166. It reached this conclusion against a backdrop of decades of California law assuming that invoices are not themselvesprivileged, _ although they maybe redacted to removeprivileged information. See Section B.3,infra. Andit did not even consider the issue raised by former Chief Justice George in Costco — whether “confidential communication”as defined by Evidence Code § 952 is limited to communications intended to further the purposeofthe legal representation — which would have provided 17 the narrow reach the Constitution mandates. Costco, 47 Cal.4th at 742; see Section B.2, infra. The Court of Appeal’s published decision mentions but does not apply the narrow construction requirement in Article 1, Section 3(b), and expands the attorney-client privilege to reach a type of information that, as discussed below,has been treated as unprivileged for decades. It should be reversed. B. The Court of Appeal’s Expansion of the Scope of the Attorney- Client Privilege Is Contrary to Decades of Law. The Court of Appeal’s decision upended a long-understood rule in the fee motion context that attorney invoices are not privileged. In dismissing the fundamental difference between an invoice(thatis sent for the business purposeofbeing paid) anda letter or similar communication (that is sent to further the legal representation), the Court created a conflict with a host of cases from this and other California courts, and a standard that will create tremendous problemsfor courts as they struggle to applyit. 1. The Attorney-Client Privilege Exists to Promote Full and Open Communications. The Court ofAppeal misinterpreted Section 952 in holding that it applies to every documenttransmitted between lawyer andclient, without regard to the nature of the documentor the purpose ofthe transmittal. This Court should grant review to reaffirm the basic principle that documents 18 that do not-contain legal advice or opinion, and whichare nottransmitted to further the legal representation, are not privileged. Evidence Code § 952 definesa privileged confidential communication between client and lawyer as containing three components: As usedin this article, “confidential communication between client and lawyer” means information transmitted between a client and his lawyerin the course ofthat relationship and in confidence ..., and includes a legal opinion formed and the — advice given by the lawyerin the course of that relationship. Id. (emphasis added). As this Court long ago explained, the fundamental purpose behind the privilege “is to safeguard the confidential relationship betweenclients and their attorneys so as to promote full and open discussion of the facts and tactics surrounding individual legal matters.” Mitchell v. Superior Court (1984) 37 Cal.3d 591, 599; see also Solin v. O'Melveny & Myers, LLP (2001) 89 Cal.App.4th 451, 457 (same). The Court explained, “[t]he public policy fostered by the privilege seeks to insure ‘the right of every person to freely and fully confer and confide in one having knowledge of the law, andskilled in its practice, in order that theformer may have adequate advice and a proper defense.” Mitchell, 37 Cal.3d at 599 (emphasis added). The privilege extends to some information transmitted between attorney and client, even without advice or opinion, because“it is the actual fact of the transmission which merits protection, since discovery 19 ofthe transmission of specific public documents might very well reveal the transmitter’s intended strategy.” Jd. at 600. Butit is not true, as the Court of Appeal held, that every piece of information communicated between attorney andclientis privileged. In Willis v. Superior Court (1980) 112 Cal.App.3d 277, the Court explained: - Although the attorney-client privilege is couched in broad terms, not every communication during the attorney-client relationship is deemed matter given in confidence. Because the privilege tends to suppress otherwise relevantfacts,it is construed so that certain species ofinformation communicated to the attorney may nevertheless be subject to disclosure as nonprivileged. Id. at 291 (emphasis added). There, the Court held that details related to the attorney-client relationship were not privileged, and hadto be disclosed in discovery. Jd. at 294-295. See also Thirteen Committee v. Weinreb (1985) 168 Cal.App.3d 528, 534 (“the identity of client sources of fees paid to attorney officeholders is not privileged unless the disclosure would reveal client confidences”(citations omitted)). Whentheprivilege applies, it “is absolute and disclosure may not be ordered, without regard to relevance, necessity or any particular circumstances peculiar to the case.” Costco, 47 Cal.4th at 732 (citing Gordon v. Superior Court (1997) 55 Cal.App.4th 1546, 1557). However, “(t]he privilege protects the disclosure of communications between attorney and client. It does not does not protect disclosure of the underlying facts 20 which were communicated.” Zimmerman v. Superior Court (2013) 220 _Cal.App.4th 389, 398. California’s appellate courts have expressed their understandingthat invoices are not privileged, although they maycontain privileged information that counselare entitled to redact. See Concepcion, 223 Cal.App.4th at 1326-1327 (“we seriously doubtthat all — or even most — of the information on eachofthe billing records proffered to the court was privileged,” and any privilege could be protected by redaction); Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1256 (“In support of its motion, Google presented Quinn Emanuel’s invoices, redacted as necessary to protect Google’s attorney-client privilege ....”). In contrast, the ACLUis not aware of a single published California decision, other than the Court of Appeal’s decision in this case, holding that invoices are absolutely privileged under Evidence Code § 952. The ACLU acknowledgesthat to the extentbilling records contain legal advice, or reveal an attorney’s mental impressions or theories, such information maybe protected by the attorney-client privilege or work product doctrine. But nothing supports the Court ofAppeal’s expansive conclusion that billing records are categorically privilegedin their entirety. A simple billing entry — the time spent preparing a reply brief in support of a summary judgment motion, for example — does not contain a legal opinion or advice given by the lawyerin the course ofthat relationship. 21 Moreover,to the extent such a time entry would implicitly reveal legal opinion by conveying that the lawyer recommendedfiling a motion for summary judgment, the actualfiling of the motion would waive whatever privilege might have existed. The privilege does not exist to protect “communications”suchas invoices. | 2. Invoices Are Not Privileged Because Their Purpose Is Not to Further the Legal Representation. The Court of Appeal believed this Court’s decision in Costco mandated the broad interpretation of Section 952 that the Court adopted. County ofLos Angeles, 235 Cal.App.4th at 1174. It erred because as the Court acknowledged, but incorrectly dismissed as irrelevant (id.), Costco involved an attorney opinion letter, which is the archetypal example of a documentthat contains an attorney opinion andis therefore privileged. But nothing about this Court’s analysis in Costco suggests it should extend beyond documents and information that traditionally have been considered privileged. The Court should have followed former ChiefJustice George’s concurrenceraising this precise issue, which madeclear that this Court did not intend to expandits decision to reach documents that were not transmitted for the purpose of the legal representation. Jd. at 741-744. In Costco this Court reiterated the basic premise, discussed above, thatthe ‘fundamental purpose”ofthe attorney-client privilege “‘is to safeguard the confidential relationship betweenclients andtheir attorneys 22 so as to promote full and open discussion ofthe facts and tactics surrounding individual legal matters.” Id. at 732 (citing Mitchell, 37 Cal.3d at 599). The Court distinguished, however, cases in which the “dominant purpose”ofthe relationship wasnot to provide legal representation. Jd. (citing D. I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 737). The Court explained that “[i]f the trial court [] concluded that the dominant purpose ofthe relationship was notthat of attorney and client, the communications would not be subject to the attorney-client privilege and therefore would be generally discoverable” (although the client would be entitled to request in camera review to support its claim of privilege). Costco, 47 Cal.4th at 740. Thus, the Court recognized that the attorney-client relationship is not black and white, but contains nuancethat informsthe scopeofthe privilege. The sameis true ofattorney-client communications. Former Chief Justice George wrote separately to raise this very issue. Jd. at 741-744 (George, C.J., concurring). He explained that “it bears emphasisthat to be privileged the communication also must occur ‘in the course of the attorney-client relationship (Evid. Code, § 952) — thatis, the communication must have been madefor the purposeofthe legal representation.” Id. at 742. “The privilege does not apply outside the context of such a relationship, certainly, but we should notforget that the 23 purpose ofthe communicationalsois critical to the application ofthe privilege.” Id. (emphasis added). The concurrence explained that the statutory limitation “‘in the course ofthat relationship’ ... is consistent with the law asit existed prior to the 1965 enactmentof section 952.” Jd. (citing Evid. Code § 952) (emphasis in original). “Prior to the enactmentofthe statute, it long had been established that, in order to be privileged, it was necessary that the communication be madefor the purpose ofthe attorney’s professional representation, and notfor some unrelatedpurpose.” Id. (citations omitted; emphasis added). He continued: Whensection 952 is viewed as a whole,it is even clearer that the Legislature intended to extend the protection of the privilege solely to those communications between the lawyer and the client that are madefor the purpose ofseeking or delivering the lawyer’s legal advice or representation. Id. at 743 (emphasis added). He explained that underthe principle of ejusdem generis (“the general term ordinarily is understood as being restricted to those things that are similar to those which are enumerated specifically”),“the information transmitted between the lawyer and the client must be similar in nature to the enumerated examples — namely,the lawyer’s legal opinion or advice,” to be privileged. /d. at 743 (citations omitted). Thus, the “dominant purpose of the communication will [sometimes] be a critical consideration.” Id. at 744. 24 The Court of Appeal applied a similar analysis in Anderson-Barker, 211 Cal.App.4th at 67, to conclude that attorney fee invoices are not exempt from disclosure under the “pendinglitigation” exemption to the CPRA, Government Code § 6254(b). It explained that “the records in question were not prepared foruse in litigation as that term is explained in the appellate decisions” and that “[t]his is true even though the recordsin question relate to pendinglitigation and, indeed, would not have existed but for the pendinglitigation.” /d. at 67 (citation omitted). The Court elaborated that the invoices were prepared, at best, for a dual purpose, and therefore that “the trial court was required to determine the dominant purposefor the preparation of the records.” Jd. (citation omitted). In affirming the trial court decision ordering disclosure of the invoices, the Court held: [T]he [trial] court concluded the dominant purpose for preparing the documents wasnotfor use inlitigation but as part of normal recordkeeping andto facilitate the payment of attorney fees on a regular basis. That such documents may have an ancillary use in litigation — for example, in connection with a request for attorney fees — does not undermine the substantial evidence before the trial court that the dominant purposeofthe records wasnotfor use in litigation. Id. The same reasoning applies here, and should haveled to the conclusion that the attorney-client privilege does not apply. to invoices sent to procure payment,notto further the purposeofthe legal representation. 25 Tellingly, the County offered no evidence to suggest that the invoices had such a purpose. See III PE 6:726-727 (Granbo declaration); III PE 6:729 (Kim declaration). See also II PE 5:595-III PE 5:684 (samplesof fee invoices to County in other matters, with minimal! redactions). To the contrary, the record evidence madeclear that invoices to the County were treated as unprivileged business communications, with redactions to “portions oftime entries that could reveal information protected by the attorney-client privilege, the attorney work product doctrine, or both.” II PE 5:588 (declaration of outside counsel); see also id. at 5:588-589 (testimony regarding preparation of invoices, with no suggestion that they were intended to convey legal advice or opinion). In painting with such a broad brush — treating everything transmitted between attorney and client as privileged, without any inquiry as to the ' reason for the transmittal — the Court ofAppeal broadly expanded the attorney client privilege in California. Its decision is flatly contrary to Anderson-Barker and former Chief Justice George’s concurrence in Costco, as well as California’s Constitution. It should be reversed. 3. For Decades, California Courts Have Operated on the Assumption That Invoices Are Not Privileged. This Court’s fee motion jurisprudence is built on the assumption that trial courts will receive thorough information about attorney hours billed in the matter, which the trial courts must carefully review to ensure that fee 26 awardsare not arbitrary. As this Court explained in Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311: - The proper determination and use of the lodestar figure is extremely important. As this court noted in SerranoIII, “The starting point of every fee award ... must be a calculation of the attorney’s services in terms ofthe time he has expended on the case. Anchoring the analysis to this concept is the only way ofapproaching the problem that can claim objectivity, a claim whichis obviously vital to the prestige ofthe bar and the courts.’” Ultimately, the trial judge has discretion to determine “the value of professional services rendered in his [or her] court ... ... However, sincedetermination of the lodestar figures is so “[f]Jundamental”to calculating the amountofthe award, the exercise of that discretion must be based on the lodestar adjustment method.... Id. at 322 (citations omitted; emphasis added); see also Serrano v. Unruh (1982) 32 Cal.3d 621, 639 & nts. 27, 28 (“[s]ufficient controls inhere in the current system, which demands that hours be carefully documented” (emphasis added)); Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295(trial court must specify in writing the basis of its calculation of fee award, for review); PLCM Group,Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 (lodestar “anchorsthetrial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awardedis not arbitrary”’). The Court’s decision in Ketchum v. Moses (2001) 24 Cal.4th 1122, again emphasized the importanceoftrial courts’ receiving detailed documentation to support a fee motion. /d. at 1131-1137. After reiterating 27 Coethe Serrano III principles, the Court noted that padding’ in the form of inefficient or duplicative efforts is not subject to compensation.” Jd. at 1131-1132. The Court then carefully discussedits fee motion cases andthe wide application of the lodestar “under a broad range ofstatutes authorizing attorney fees.” Jd. at 1133-1135 (citations omitted). The Court ultimately adopted the lodestar method as the properbasis for fee awards following a special motionto strike (Cal. Code Civ. Proc. § 425.16), given the long history and implicit legislative approval of the lodestar. Jd. at 1136. Underthis Court’s consistent direction, California’s trial and appellate courts have relied heavily on attorney invoices as evidence to “support the reasonableness of hours spent and fees incurred when applying the lodestar method. In Concepcion, 223 CalApp.4th at 1320, for example, the court emphasized that attorneys are “not automatically entitled to all hours they claim in their request for fees. They must prove the hours they sought were reasonable and necessary.” (Citation omitted.) The Court explained that “[t]he evidence should allow the court to consider whether the case was overstaffed, how much timethe attorneys spent on particular claims, and whether the hours were reasonably expended.” Jd. (citation omitted); see also Bell v. Vista Unified School District (2000) 82 Cal.App.4th 672, 689 (criticizing block billing invoices as not providing information trial court needed to apportion fees); ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020 (“[t]o that end the Court may 28 require a prevailing partyto producerecordssufficient to provide ‘a proper basis for determining how muchtime wasspent on particular claims’” (citation omitted)). Importantly, the Legislature never has actedto alter the Court’s fundamental premise in Serrano II] — that courts and opposing counsel are entitled to carefully review attorney time spent on a matter to fully evaluate eeany fee claim. To the contrary, ““[t]he Legislature appears to have endorsed the [lodestar adjustment] method of calculating fees, except in certain limited situations.’” Ketchum, 24 Cal.4th at 1135 (citation omitted). Asthe Court explained there, the Legislature’s “express restriction on the use of fee enhancements [in a statute] ‘can be read as an implicit endorsementoftheir use in other contexts.’” Jd. (citation omitted). The Court summarized: In the more than 20 [now 40] years since Serrano III ... our courts have applied the lodestar adjustment method and our Legislature has enacted numerousfee-shifting statutes, . including the oneat issue here, presumptively acquiescing in the long-standing use of the lodestar adjustment method by courts determining the amount of fee awards. Id. at 745 (citation omitted); see also In re Donald R. (1993) 14 Cal.App.4th 1627, 1632 n.5 (“[s]ince the statute has not been altered by subsequentlegislation, the Legislature has indicated its approval of these constructions” (quoting Wilkoffv. Superior Ct. (1985) 38 Cal.3d 345, 353)). 29 This Court’s decision in Serrano IIT has been cited nearly 2,200 times. Petitioner is not aware ofa single published decision or legislative statement to suggest that the key evidence that should (and usually does) support a fee motion — attorney invoices — are protected by the attorney- client privilege. No court has engaged in any hand-wringing or careful — analysis to assess whether the court can or should require disclosure of the invoices. Instead, California courts have acted on the assumption that if they need detailed invoice information to support a fee motion, they are entitled e demand it. E.g., Concepcion, 223 Cal.App.4th at 1325 (when trial court concluded that evidence presented to support fee motion was insufficient, “it was certainly within the trial court’s discretion to request additional information to allow it to determine the numberofhours reasonably workedfor inclusion in the lodestar calculation”). Finally, the Court of Appeal’s decision creates a conflict for attorneys whopractice in federal courts, which hold that attorney invoices are not protected by the attorney-client privilege: E.g., Tornay v. U.S. (9th Cir. 1988) 840 F.2d 1424, 1426 (“fee information generally is not privileged”). In federal courts, documentary evidence suchas attorney invoicesis critical to determine “the numberofhours spent, and how [the trial court] determined the hourly rate(s) requested.” McCown v. City of | Fontana (9th Cir. 2009) 565 F.3d 1097, 1102. Parties may not rely on bare representations about hours worked. See, e.g., Davis v. Los Angeles W. 30 Travelodge (C.D. Cal. Dec. 21, 2009) 2009 WL 5227897, *1 (‘“{a]lthough | Defendant may redact confidential information contained in such invoices, Defendant must provide some evidence to corroborate the numberofhours specified in Defendant’s Motion”). The Court of Appeal dismissed these and other federal authorities as irrelevant “[b]Jecause in California the attorney-client privilege is a creature of statute and governed by California law ....” 235 Cal.App.4th at 1168 n.3. But the Court overlooked the fact that the attorney-client privilege is an ethical obligation, as well as a rule of evidence. Cal. R. Prof. Cond. 3- 100. Thus, California attorneys whopractice in federal court are required _ by federal law to submit evidence that their ethical obligations may prohibit them from disclosing. This cannot be the law. Invoices have neverbeen treated as privileged becausethey are not. The Court ofAppeal’s Opinion ignored the routine disclosure of invoices for decades in California — evidence that they are not the type of sensitive informationthat the attorney-client privilege protects — and broadly expandedthe scope oftheprivilege. 4. The Court of Appeal’s Reasons for Rejecting ACLU’s Arguments Do Not Withstand Scrutiny. The Court of Appeal dismissed ACLU’s concernsabout the practical implications of holding that invoices are privileged, concluding that the client could simply waivethe privilege. 235 Cal.App.4th at 1177. The 31 Court also opined that substitute information could be provided, such as the underlying task detail, without providing the actual invoicessent to clients. Id. Theseare not solutions to the dilemmathe Court created. First, the Court overlooked the many problemsthat inevitably will arise from a rule that gives the client the right to decide whetheror not to waive privilege in the invoices. Under California’s fee-shifting statutes, | attorneys’ fee awards belongto the attorney, not the client. See, e.g., Folsom v. Butte County Ass’n ofGov’ts (1982) 32 Cal.3d 668, 682 n.26 (interpreting Code Civ. Proc. § 1021.5); Flannery v. Prentice (2001) 26 Cal.4th 572, 590 (interpreting Gov’t Code § 12965). Evenif a client refuses to seek attorneys’ fees, attorneys have a separate right to seek those fees. See, e.g., Lindelli v. Town ofSan Anselmo (2006) 139 Cal.App.4th 1499 (attorneys acting on their own behalf can intervene in client’s lawsuit and move for attorneys’ fees). The Court of Appeal’s decision is incompatible with these cases because it would allow clients to invoke their | privilege and prevent attorneys from provingtheir fees. Norwill trial courts be able to fill this gap by relying on the “implied waiver” theory to adopt an assumptionthatclients in fee-shifting cases should be automatically deemed to have waivedprivilege in the invoices. The implied waiver theory is too narrow for such an assumption;the attorney-client privilege is waived only if “the client has put the otherwise | privileged communication directly at issue and that disclosure is essential 32 for a fair adjudication of the action.” Southern Cal. Gas Co. v. Public Util. Com. (1990) 50 Cal.3d 31, 37. It is not waived “where the substance ofthe protected communicationis notitself tendered in issue, but instead simply represents one of several formsof indirect evidence in the matter.” Mitchell, 37 Cal.3d at 606 (content of plaintiff's communication to her attorneys was protected by privilege where it was not directly relevant); see also Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 125, 129 (narrowly interpreting implied waiver; attorney client privilege “‘is one of the few instances where the Evidence Code precludes the courts from elaborating uponthe statutory scheme’”; courts may not “addto the statutory privileges or imply unwritten exceptions” (citations omitted)). In the fee motion context, because invoices are not strictly necessary to support a fee motion (Concepcion, 223 Cal.App.4th at 1324 (citation omitted)) — and so, they are “one of several forms ofindirect evidence in the matter” — this Court’s decision in Mitchell would preclude a finding of implied waiver. 37 Cal.3d at 606. In addition, the Court of Appeal’s opinion overlooks the fact that counsel opposing a fee motion hasthe right to evaluate the fees requested to provide a substantive challenge on the merits. FE.g., Concepcion, 223 | Cal.App.4th at 1325-1326 (“[uJnder our adversarial system ofjustice, once class counsel presented evidence to support their fee request, [the opponent] wasentitled to see and respondto it and to present its own argumentsas to 33 whyit failed to justify the fees requested”(citations omitted)). If fee | movants have the discretion to decide what they will submit to support their fee motion — protected by the cover of a privilege they cannot be forced to waive — fee opponents will not have the information they need to evaluate — and respond to the fee request. They, along with the court, will be left to guessworkand conjecture to evaluate an unsubstantiated fee demand. Second, attorneys may notbe able to circumventthis problem by submitting substitute information to the court, such as the underlying task detail, because the privilege may extend to that information as well. A party is deemed to have waived the attorney-client privilege wherethat party or their attorney «substantially discloses” a “significant part ofthe [protected] communication.” Mitchell, 37 Cal.3d at 602-603 (plaintiffs acknowledgementthat she had discussed chemical warnings with her attorney wasinsufficient to waive her attorney-client privilege) (citing Travelers Ins. Cos. v. Superior Ct. (1983) 143 Cal.App.3d 436 (attorney’s preliminary and foundational answersto interrogatories were too vague to have waived privilege)). The waiver determination hinges on whetherthe disclosure was “wide enough in scope and deep enoughin substance to constitute ‘a significant part of the communication.’” Travelers Ins. Cos., 143 Cal.App.3d at 444. In the fee motion context, however, a disclosure detailed enoughto satisfy this Court’s oft-repeated requirements could be considered “a significant part of the communication,” and waive the 34 privilege in the invoices (other than redacted information, such as attorney advice and opinions). The intersection of these different lines of cases highlights the fundamental point that the Court ofAppeal overlooked. No reason exists to extend to invoices, a privilege that the Legislature created to protect attorney advice and opinions. Invoices do not need the protection that other privileged information receives because once privileged information is redacted, they reveal nothing aboutthe legal representation thatis entitled to an absolute presumption of confidentiality. The Court of Appeal’s decision exalts form over substance, protecting documents that have no good reason to be protected. C. The Appellate Opinion Turns the CPRA and Constitutional Presumptions of Access Upside Down. The Court of Appeal’s decision turns on its head the heavy presumption of access underlying Article 1, Section 3(b) and the CPRA. Agencies will disclose invoices when they choose, but invokethe privilege to withhold invoices when they would prefer not to let details about the conduct of their counsel — and the amountbilled to the public — become public knowledge. The County does not hesitate to reveal its attorneys’ invoices to support its own fee motions, and has recognizedin that contextthat invoices are not privileged, although some entries may be redacted because 35 they reflect privileged information. See, e.g., If PE 5:586-III PE 5:684 (attaching almost ninety pagesof lightly redacted invoices to support fee motion). The County also has argued that to recover attorneys’ fees, prevailing parties bear the burden of “provid[ing] a useful accounting of the claimed hours”including descriptions of the time spent by counsel. IT PE 5:529; see also II PE 5:539 (arguing that “Plaintiffs counsel’s billing statement is too vague to support their claimed fees,” and “plaintiff's ~ request here should be denied due to inadequate documentation”). This Court has rejected a statutory interpretation that would permit agencies to control which documents must be disclosed under the CPRA. E.g., Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 290-291. As the Court explained in Jnt’] Federation, “ft]he Act should apply in the same way to comparable records maintained by comparable governmentalentities.” 42 Cal.4th at 336. Similarly, the County should not be allowed to claim a privilege in informationat its whim — withholding attorney invoices whenit chooses, but using them asa sword against opponents whenit believes that use will be to its advantage | The Court of Appeal’s decision will diminish, rather than enhance, the privilege. By applying the privilege to invoices, which do not further the purposeofthe legal representation, the Court ofAppeal has created a category of information that necessarily will receive less protection,for all 36 of the reasons discussed above. Trial and appellate courts will be forced to find ways to compel disclosure of invoices — within the constraints of the well-developed California law that provides broad protection to privileged communications — to ensure that they have the information they need. In the end, the law that will develop around attorney invoices — to ensure that they remain available in fee disputes — will either weaken the protections that other privileged materials enjoy, orit will become sui generis, limited to invoices alone. Theresult will be a category of information thatis treated differently from other privileged communications, and without the careful protection that attorney advice and opinions receive. But in the CPRA context, perversely, the public will have no right of access. Evidence Code § 952 will have its broadest reach, contrary to the constitutional mandate to interpret statutes narrowly to further the public’s right of access. This result turns the CPRA and the Constitution upside down. CONCLUSION The Court of Appeal’s decision elevates form over substance in concluding that attorney invoices are absolutely privileged, without regard to their purposeor the reason they are transmitted. The Court’s expansion of the attorney-client privilege to reach invoices is contrary to California law, including this Court’s extensive fee motion jurisprudence. 37 The ACLU respectfully requests that the Court grant review in this matter, reverse the Court of Appeal’s decision, and direct that Court to deny the County’s petition for writ of mandate. Respectfully Submitted this 26th day of May, 2015 38 ACLU FOUNDATION OF SOUTHERN CALIFORNIA Peter J. Eliasberg DAVIS WRIGHT TREMAINE LLP Jennifer L. Brockett Rochelle L. Wilcox Colin D. Wells By: VEEL =kbd CLL Rochelle L. Wilcox Attorneys for Real Parties in Interest ACLU OF SOUTHERN CALIFORNIAand ERIC PREVEN COMPLIANCE CERTIFICATE I am an attorney inthe law firm of Davis Wright Tremaine LLP. I certify that pursuant to Rule of Court 8.504(d), the attached Petition for Review is proportionately spaced, has a typeface of 13 points, and according to the word processing systems used to prepare this Petition contains 8,383 words, including footnotes, but excluding the caption, tables, this certificate, and signature blocks. Dated: May 26, 2015 DAVIS WRIGHT TREMAINE LLP Colin D. Wells 39 DWT26751050v2 0200646-000001 Filed 4/13/15 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATEDISTRICT DIVISION THREE COUNTY OF LOS ANGELES BOARD OF SUPERVISORSetal., Petitioners, Vv. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; ACLU OF SOUTHERN CALIFORNIA et al., Real Parties in Interest. No. B257230 (Los Angeles County Super. Ct. No. BS145753) ORIGINAL PROCEEDINGSin mandate. Luis A. Lavin, Judge. Petition granted. John F.Krattli and Mark J. Saladino, County Counsel, Roger H. Granbo, Assistant County Counsel, Jonathan McCaverty, Deputy County Counsel; Greines, Martin, Stein & Richland, Timothy T. Coates and Barbara W.Ravitz for Petitioners. Horvitz & Levy, Lisa Perrochet, Steven S. Fleischman and Jean M. Doherty for Association of Southern California Defense Counsel as Amicus Curiae on behalf of Petitioners. No appearance for Respondent. Peter J. Eliasberg for Real Parties in Interest ACLU of Southern California and Eric Preven. Davis Wright Tremaine, Jennifer L. Brockett and Nicolas A. Jampol for Real Party in Interest ACLU of Southern California. The question weresolve in this writ proceeding is whetherbilling invoices sent by an attorney to a client must be disclosed pursuant to the California Public Records Act (CPRA), or whether they are protected by the attorney-client privilege. Both the CPRA and the attorney-client privilege advance public policies of the highest order: the CPRA fosters transparency in government, and the attorney-client privilege enhances the effectiveness of our legal system. In the instant matter, these two interests collide. We conclude that, because the CPRA expressly exempts attorney-client privileged ‘communications from the CPRA’sreach, the tension musthere be resolved in favor of the privilege. Because the invoices are confidential communications within the meaning of Evidence Code section 952, they are exempt from disclosure under Government Code section 6254, subdivision (k). Accordingly, we grant the writ petition. FACTUAL AND PROCEDURAL BACKGROUND In the wake of several publicized investigations into allegations that the Los Angeles County Sheriff's Department used excessive force on inmates housedin the Los Angeles County jail system, real parties in interest the ACLU of Southern California and Eric Preven (collectively, theACLU) submitted a CPRA request to petitioners the Los Angeles County Board of Supervisors and the Office of the Los Angeles County Counsel(collectively, the County) for invoices specifying the amounts that the County of Los Angeles had been billed by any law firm in connection with nine different lawsuits “brought by inmates involvingalleged jail violence.” It also sought disclosure of service agreements between the County and two consultants and an “implementation monitor.” The ACLU sought the documents to enable it to “ ‘determine what work was being done on the lawsuits, the scope of that work, the quality of the representation, and the efficiency of the work.’ ” The County agreed to produce copies of the requested documentsrelated to three such lawsuits, which were no longer pending, with attorney-client privileged and work product information redacted. It declined to provide billing statements for the remaining six lawsuits, which werestill pending. It averred that the “detailed description, timing, and amount of attorney work performed, which communicates to the client and discloses attorney strategy, tactics, thought processes and analysis” were privileged and therefore exempt from disclosure under Government Code section 6254, subdivision (k), as well as under the CPRA’s “catchall” exemption, Government Code section 6255, subdivision (a). It contended the service agreements were also protected by, inter alia, Business and Professions Code sections 6149 (which deemswritten fee contracts confidential communications) and 6148. The ACLUfiled a petition for writ of mandate in the superior court, seeking to ‘compel the County to “comply with the [CPRA]” and disclose the requested records for all nine lawsuits. The ACLU averred: “Current and formerjail inmates have brought numerous lawsuits against the County and others for alleged excessive force. The County has retained a numberoflaw firms to defend againstthese suits. It is believed that the selected law firms may have engaged in ‘scorchedearth’litigation tactics and dragged out cases even whena settlement wasin the best interest of the County or when a settlement was likely. Given the issues raised by the allegations in these complaints and the use of taxpayer dollars to pay for the alleged use of scorched earthlitigation tactics, the public has a right and interest in ensuringthe transparent andefficient use of taxpayer money.” The ACLU arguedthat the billing records were not generally protected by the attorney-client or work product privileges, or by the Business and Professions Codesections, and did notfall within any of the statutory exceptionsto the CPRA. The ACLU acknowledgedthat “to the extent that a particular billing description reflects an attorney’s legal opinion and advice to the County, or reveals the attorney’s mental impressionsor theories of the case, such information may properly be redacted under the attorney-client privilege or work product doctrine.” However, the ACLU expected that such entries would be “few in number, and the remainder of an attorney’s billing records is not protected from disclosure atall.” The County respondedbyreiterating that the billing records were protected by the attorney-client privilege; that the Business and Professions Code sections demonstrated information about financial arrangementsand services wasprivileged and confidential; and that the billing records were protected from disclosure under the CPRA’s catchall exemption. In a thoughtful decision, the superior court granted the petition for writ of mandate insofar as it pertained to the billing records.! The court held that the County hadfailed to _ showthebilling records were attorney-client privileged communications exempt from disclosure. It reasoned that Evidence Code section 952, which defines attorney-client privileged communications, “does not automatically apply to any communication between an attorney andhis or her client.” The party claimingthe privilege mustassert specific facts demonstrating how the challenged document qualifies as a privileged communication. In the court’s view, the County had “not alleged any specific fact demonstrating why the billing statements, with proper redactions concealing actual attorney-client privileged communications or attorney work product, would qualify as privileged communications exempt from disclosure under Evidence Code section . 952 ....” Further, the County had failed to produce any “actual evidence concerning the contents of the billing statements, including whether they were producedfora litigation- _ related purpose.” . The court also rejected the County’s argumentthat the billing statements should be considered confidential in light of Business and Professions Code sections 6148 and 6149. The court observed that Business and Professions Codesection 6148, subdivisions 1 Bythe time of the hearing below, the requests for two of the service agreements were no longerat issue. The superior court denied the ACLU’spetition insofarasit sought the agreement between the County and the implementation monitor, and denied the ACLU’s motion for reconsideration. Thoserulings are not before us. (a) and (b), describes what types of information should be included in fee agreements and billing statements, respectively. However, Business and Professions Code section 6149 deemed only fee agreements to be confidential communications for purposes of the attorney-client privilege. Applying the standard canonsofstatutory construction, the court concluded the Legislature did not intend the information in billing statements to be deemed confidential. Finally, the court foundthe billing statements were not exempt from disclosure under the CPRA’s “catchall” exemption, because the County had failed to demonstrate a clear overbalance in favor of nondisclosure justifying withholding the requested records. Accordingly, the court ordered the County to release “all invoices issued by the County’s outside attorneys in the nine cases specified” in the CPRA request. However, “[t]o the extent any documentsthat are responsive to the Requests reflect an attorney’s legal opinion or advice, or reveal an attorney’s mental impressionsor theories ofthecase, such limited information maybe redacted.” The County then filed the instant petition for writ of mandate, challengingthetrial court’s ruling. The Association of Southern California Defense Counsel, as amicus | curiae,filed a letter in support of issuance of the writ. We issued an order to showcause. DISCUSSION 1. Standard ofreview A superior court’s ruling under the CPRA,either directing disclosure by a public official or supporting the decision of the public official refusing disclosure,is “immediately reviewable bypetition to the appellate court for the issuance of an extraordinary writ.” (Gov. Code, § 6259, subd. (c); MinCal Consumer Law Group v. Carlsbad Police Dept. (2013) 214 Cal.App.4th 259, 263-264; Consolidated Irrigation Dist. v. Superior Court (2012) 205 Cal.App.4th 697, 708.) We independently review a trial court’s interpretation of the CPRA andits application of the CPRA to undisputed facts, but uphold its express or implied factual findings if based on substantial evidence. (County ofLos Angeles v. Superior Court (2012) 211 Cal.App.4th 57, 62 (Anderson- Barker); Bakersfield City School Dist. v. Superior Court (2004) 118 Cal.App.4th 1041, 1045; Consolidated Irrigation Dist. v. Superior Court, at pp. 708-709.) 2. The statutes a. The CPRA “The California Legislature in 1968, recognizing that ‘access to information _ concerning the conduct of the people’s business is a fundamental and necessaryright of every personin this state’ (Gov. Code, § 6250), enacted the California Public Records Act, which grants access to public records held by state and local agencies (Gov. Code, § 6253, subd. (a)).” (Long Beach Police Officers Assn. v. City ofLong Beach (2014): 59 Cal.4th 59, 66-67 (Long Beach Police).) “As the result of an initiative adopted by the voters in 2004, this principle is now enshrined in the state Constitution: ‘The people have the right of access to information concerning the conduct of the people’s business, and therefore, . . . the writings of public officials and agencies shall be open to public scrutiny.” (Cal. Const., art. I, § 3, subd. (b)(1).)” (International Federation of Professional & Technical Engineers, Local 21, AFL-CIOy. Superior Court (2007) 42 Cal.4th 319, 329 Unternational Federation).) The CPRA’spurposeis to increase freedom of information by providing public access to information in the possession of public agencies. (Fiilarsky v. Superior Court (2002) 28 Cal.4th 419, 425; Roberts v. City ofPalmdale (1993) 5 Cal.4th 363, 370; Anderson-Barker, supra, 211 Cal.App.4th at p. 63; Consolidated Irrigation Dist. v. Superior Court, supra, 205 Cal.App.4th at p. 708.) To implementthis policy, .Government Codesection 6253, subdivision (a) providesall persons with the right to inspect any public record maintained bystate orlocal agencies, subject to various enumerated exemptions. (Long Beach Police, supra, 59 Cal.4th at p. 67; Anderson- Barker, at p. 63; Consolidated Irrigation Dist., at p. 708.) The act “broadly defines ‘“[pjublic records”’ as including ‘any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency....’ (Gov. Code,§ 6252, subd. (e).)” (Long Beach Police, at p. 67; Consolidated Irrigation Dist., at p. 708.) Here, it is undisputed that the County is such a 6 local agency, and that the billing records at issue are public records within the meaning of the CPRA. The CPRA embodiesa strong policy in favor of disclosure. (Bakersfield City School Dist. v. Superior Court, supra, 118 Cal.App.4th at p. 1045.) Because the CPRA furthers the people’s right of access, it must be construed broadly. (Cal. Const., art. I, § 3, subd. (b)(2); Anderson-Barker, supra, 211 Cal.App.4th at p. 63.) The people’s right of access is not absolute, however. (Humane Society of U.S.v. Superior Court (2013) 214 Cal.App.4th 1233, 1254.) The CPRA contains over two dozen express exemptions. (Gov. Code, § 6254; International Federation, supra, 42 Cal.4th at p. 329; HumaneSociety of U.S., at pp. 1254-1255.) “The 2004 initiative that amended the state Constitution to includea right of access to public records explicitly preserves such statutory exceptions. (Cal. Const., art I, § 3, subd. (b)(5).)” (International Federation, at p. 329, fn. 2.) The exemptionsare to be construed narrowly. (Humane Society of US, at p. 1254; Anderson-Barker, supra, 211 Cal.App.4th at p. 60.) Relevant here is subdivision (k) of Government Codesection 6254, which provides an exemptionfor “{r]ecords, the disclosure of whichis exempted or prohibited pursuantto federal or state law, including, but not limited to, provisions of the Evidence Coderelating to privilege.” Pursuant to this subdivision, documentsprotected by the attorney-client privilege are notsubject to CPRA disclosure. (Anderson-Barker, supra, 211 Cal.App.4th atp. 64; Roberts v. City ofPalmdale, supra, 5 Cal.4th at p. 370 [“Byits reference to the privileges contained in the Evidence Code . . . the Public Records Act has madethe attorney-client privilege applicable to public records”]; Sanchez v. County of San Bernardino (2009) 176 Cal.App.4th 516, 527 [“The Public Records Act does not require the disclosure of a documentthat is subject to the attorney-client privilege”].) Additionally, Government Code section 6255, subdivision (a), sometimes referred to as the “public interest”or “catchall” exemption,allows a public agencyto “ ustify withholding any record by demonstrating that . . . on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest 7 served by disclosure of the record.’ ” (Long Beach Police, supra, 59 Cal.4th at p. 67; International Federation, supra, 42 Cal.4th at p. 329; Bakersfield City School Dist. v. Superior Court, supra,118 Cal.App.4th at p. 1045.) This provision contemplates a case- by-case balancing process, and the proponent of nondisclosure must demonstrate a “clear overbalance on the side of confidentiality.” (Michaelis, Montanari & Johnsonv. Superior Court (2006) 38 Cal.4th 1065, 1071.) A public entity opposing disclosure bears the burden to show the requested information falls within the parameters of a specific exemption. (Long Beach Police, supra, 59 Cal.4th at p. 67; International Federation, supra, 42 Cal.4th at p. 329; Anderson-Barker, supra, 211 Cal.App.4th at p. 63; Gov. Code, § 6255, subd. (a) [““The agencyshail justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter”].) “Unless one of the exceptions stated in the Act applies, the public is entitled to access... .” (International Federation, at p. 329.) b. The attorney-client privilege The attorney-client privilege is embodied in Evidence Code section 950 et seq. and protects confidential communications betweena client and his or her attorney made in the course of an attorney-clientrelationship. (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 732 (Costco); Roberts v. City ofPalmdale, supra, 5 Cal.4th at p. 371.) “ ‘[T]he fundamental purposeof the attorney-clientprivilege is the preservation of the confidential relationship between attorney and client [citation], and the primary harm in the discovery of privileged material is the disruption of that relationship... .’ [Citation.]” (Fireman’s Fund Ins. Co. v. Superior Court (2011) 196 Cal.App.4th 1263, 1272.) Evidence Codesection 954 “confers a privilege on the client ‘to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer... .’ ” (Costco, at p. 732.) “[T]he public policy fostered by the privilege seeks to insure ‘the right of every personto freely and fully confer and confide in one having knowledge of the law,and skilled in its practice, in ”» order that the former may have adequate advice and a proper defense.’ [Citation.] 8 (Mitchell v. Superior Court (1984) 37 Cal.3d 591, 599; Roberts v. City ofPalmdale,at . p. 380.) “ ‘Although exercise of the privilege may occasionally result in the suppression of relevant evidence, the Legislature of this state has determined that these concernsare outweighed by the importance of preserving confidentiality in the attorney-client relationship. As [our Supreme Court] has stated: “The privilege is given on grounds of public policy in the belief that the benefits derived therefrom justify the risk that unjust decisions may sometimesresult from the suppression of relevant evidence.” [Citations.]’” (Costco, at p. 732.) Evidence Code section 952 broadly defines “confidential communication.” (Fireman’s Fund Ins. Co. v. Superior Court, supra, 196 Cal.App.4th at p. 1273.) Section 952 providesthat a confidential communication means “information transmitted between a client and his or her lawyer in the course ofthat relationship and in confidence,” by confidential means, and “includes a legal opinion formed and the advice given by the lawyer in the course ofthat relationship.” “The term ‘confidential communication’is broadly construed, and communications between a lawyer andhis[or her] client are presumedconfidential, with the burden on the party seeking disclosure to show otherwise.” (Gordon vy. Superior Court (1997) 55 Cal.App.4th 1546, 1557.) Discovery of a privileged communication is barred irrespective of whether it includes unprivileged material. (Costco, supra, 47 Cal.4th at p. 734.) Where no enumerated exception applies (see Evid. Code, §§ 956-962), “ ‘[t]he privilege is absolute and disclosure maynotbe ordered, without regard to relevance, necessity or any particular circumstancespeculiar to the case.’ [Citation.]” (Costco, supra, 47 Cal.4th at p. 732.) 3. Arebilling statements covered by the attorney-client privilege under California law? Webegin our analysis with the dispositive question of whetherbilling statements qualify as privileged communications under Evidence Code section 952. While several cases have touched onthe fringes of this question, none have squarely decidedit. In Anderson-Barker, a colleague of attorneys who represented the plaintiffs in a pendingcivil rights suit brought against the County made a CPRA requestfor billing records of law firms that represented the County in the lawsuit. The CPRA request soughtthe firms’ invoices, attorney time records, and the County’s paymentrecords. (Anderson-Barker, supra, 211 Cal.App.4th at pp. 60-61.) The County asserted that the documents were attorney-client privileged and work product communications not subject r+9to disclosure, and were also exempt under the CPRA’s “pendinglitigation” exemption. (Gov. Code, § 6254, subd. (b);2 Anderson-Barker, at p.61.) Thetrial court ruled the documents were not attorney-client privileged communications. It ordered the records redacted to protect portions containing attorney work product, and ordered disclosure of the information that was “ ‘not work product—the hours worked, the identity of the person performing the work, and the amount charged.’ ” (Anderson-Barker, at p. 61.) Thetrial court concluded the CPRA’s “pendinglitigation” exemption did not apply, because it pertained only to records specifically prepared for use in litigation. (/d. at p. 62.) The County challenged the latter aspect of the trial court’s ruling via a writ petition, but did “nor challengethetrial court’s ruling with respect to the attorney-client and work product privileges.” (/bid.) The appellate court upheldthe trial court’s ruling that, given the narrow construction of CPRA exemptions, the pendinglitigation exemption did not apply because althoughthebilling records related to thelitigation, they werenot specifically prepared for use in the litigation. (/d. at pp. 64, 67.) Here, the pendinglitigation exemption is not at issue; the County does not aver that the recordsfall within that exemption. Thus, because casesare not authority for propositions not considered (McWilliams v. City ofLong Beach (2013) 56 Cal.4th 613, 626), Anderson- Barker does not answerthe question beforeus. co 62 The pendinglitigation exemption excepts from disclosure records ‘pertaining to pendinglitigation to which the public agencyis a party . . , until the pendinglitigation... has beenfinally adjudicated or otherwisesettled.’ ” (Anderson-Barker, supra, 211 Cal.App.4th at p. 60; Gov. Code, § 6254, subd.(b).) 10 In Smith v. Laguna Sur Villas Community Assn. (2000) 79 Cal.App.4th 639, two condominium associations retained a law firm to bring a construction defect action against the developer. A dissident group of residents demandedto review the law firm’s work product and legal bills. (/d. at p. 642.) The association objected that the documents were protected by the attorney-client and work product privileges. The appellate court affirmedthe trial court’s holding that the association wasthe holder of the attorney-client privilege and individual homeowners could not demand the production of privileged documents, except as allowed bythe association. (/d. at p. 643.) Smith assumed without discussion that the legal bills in question were protected by the privilege. Again, because the case did not directly consider the issue, it does not answer the question before us. The primary issue in Concepcion v. Amscan Holdings, Inc. (2014) 223 Cal.App.4th 1309, was whethera trial court could, when awarding attorney fees, rely on records not provided to the defendant. There, in several coordinated class actions, plaintiffs alleged that Party City improperly recorded zip code information during credit card transactions. After the trial court approved a settlement of the cases, the plaintiffs sought attorney fees. (/d. at pp. 1312-1314.) Party City opposed the motion on the ground the fees claimed were excessive and duplicative, among other things. Ud. at p. 1316.) Thetrial court requested detailed time records, which mostof the class counsels had offered to provide, for in camera review. After considering the time records in camera, the court awarded the requested fees. On appeal, our colleagues in Division Seven agreed with Party City that it was improperfor the court to rely uponbilling information that Party City had no opportunity to challenge. (/d. at p. 1312.) In arguing against that conclusion,the plaintiffs had “suggest[ed] class counsel’s billing records contain[ed] privileged information, thus justifying in camera review.” (/d. at p. 1326.) Concepcion rejected this argument, explaining, “we seriously doubt that all—or even most—of the information on each ofthe billing records proffered to the court was privileged. Certainly the trial court made no such finding. Noris there any explanation whythe supplemental information requested by the court could not have been provided by filing—and serving on Party City—redacted copies ofthe bills deleting any privileged 11 information.” (/d. at pp. 1326-1327.) While Concepcion was skeptical of the notion that the billing records were privileged on the wholly different facts of that case, the court offered no analysis ofthe basis forits view.3 | Accordingly, we turn to analysis of Evidence Code section 952. a. A communication between attorney andclient, arising in the course of representationfor which theclient sought legal advice, need notinclude a legal opinion or advice to qualify as a privileged communication. Thetrial court’s written ruling suggests it believed that to establish the preliminary facts necessary to support aclaim of attorney-client privilege, a party must do more than demonstrate that a documentis a confidential communication between attorney and client, madein the course of the representation. It reasoned: “Evidence Code section 3 The ACLU pointsout that the Ninth Circuit, and courts in other jurisdictions, have — held the attorney-client privilege does not categorically protect billing records. (See, e.g., Clarke v. American Commerce Nat. Bank (9th Cir. 1992) 974 F.2d 127, 129-130 [under the federal commonlaw,the identity of the client, the amountofthe fee, the identification of payment by case file name, and the general purpose of the work performedare usually not protected from disclosure by the attorney-client privilege; correspondence,bills, ledgers, statements, and time records which also reveal the motive of the client in seeking representation, litigation strategy, or the specific nature of the services provided, such as researching particular areas of law, fall within the privilege]; DiBella v. Hopkins (2d Cir. 2005) 403 F.3d 102, 120 [“In New York, attorney time records andbilling statements are not privileged when they do not contain detailed accounts ofthe legal services rendered”]; Beavers v. Hobbs (S.D. Iowa 1997) 176 F.R.D. 562, 565 [generally,billing records that do not reveal confidential information are subject to discovery and not protected by the attorney-client privilege]; Tipton v. Barton - (Mo.App. 1988) 747 S.W.2d 325, 330-332.) Other non-California authorities hold differently. (See State ex rel. Dawson v. Bloom-Carroll Local School Dist. (Ohio 2011) 131 Ohio St. 3d 10 [959 N.E.2d 524, 529] [“ ‘While a simple invoice ordinarily is not privileged, itemized legal bills necessarily reveal confidential information and thusfall within the [attorney-client] privilege’ ”]; Progressive American Ins. Co. v. Lanier (Fla.App., 1st Dist. 2001) 800 So.2d 689, 690 [billing statements were absolutely privileged as attorney-client communications].) Because in California the attorney-client privilege is a creature of statute and governed by California law (see Wells Fargo Bankv. Superior Court (2000) 22 Cal.4th 201, 206-209), these out-of-state authorities are of limited utility. 12 952 does not automatically apply to any communication between anattorney andhis or her client.... Rather, the party claiming the privilege mustassert specific facts, usually via declarations, demonstrating how the challenged documentqualifies as a privileged communication.” The ACLUtakesthis approach a step further, and aversthatit is a “basic principle”that “communications that do not contain legal advice or opinion are not - _— privileged.” Wedisagree. ; As noted, Evidence Code section 952 defines “confidential communication” for purposesofthe attorney-client privilege. It states: “As usedin this article, ‘confidential communication betweenclient and lawyer’ means information transmitted between a client and his or her lawyer in 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 persons other than those whoarepresentto 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 accomplishmentofthe purpose for which the lawyeris consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.” Theparties disagree about the meaning ofthe final clause, “and includes legal opinion formed and the advice given by the lawyer in the course of that relationship.” __ The ACLU readsthis phrase to mean that only communicationscontaining legal advice or opinion qualify as confidential communications. The County, on the other hand, contends it means that a confidential communication includes, but is not limited to, a communication incorporating the lawyer’s legal opinionsor advice. Wheninterpreting a statute, our goalis to effectuate the Legislature’s intent. . | (Riverside County Sheriff's Dept. v. Stiglitz (2014) 60 Cal.4th 624, 630; Roger Cleveland GolfCo., Inc. v.Krane & Smith, APC (2014) 225 Cal.App.4th 660, 677.) We begin with the plain, commonsense meaning of the language used by the Legislature. (Riverside County Sheriff's Dept., at p. 630.) If the language is susceptible to more than one reasonable construction, we may look to extrinsic aids, such asthelegislative history, the purposeofthe statute, and public policy. (Holland v. Assessment Appeals Bd. No. 1 13 (2014) 58 Cal.4th 482, 490; Los Angeles County Metropolitan Transportation Authority v. Alameda Produce Market, LLC (2011) 52 Cal.4th 1100, 1107.) We avoid any | construction that would lead to an unreasonable, impractical, or arbitrary result. (Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 388; Roger Cleveland GolfCo., Inc., at p. 678.) Here, the question is whether “includes”in the final clause ofthe statute is a requirement, or denotes examples of the types of information that may be included in a confidential communication. To the extent the statutory language is ambiguous,the County arguesthat the statute’s legislative history suggests an answer. Evidence Code section 952 was enacted as part of the original Evidence Code in 1965, and replaced the former codification ofthe privilege in Code of Civil Procedure section 1881, subdivision 2. As originally enacted, the clause at issue stated “and includes advice given by the lawyer in the course of that relationship.” (Stats. 1965, ch. 299, art. 3, pp. 1325-1326.) It was amendedin 1967 to read “and includes a legal opinionformed and the advice given by the lawyer in the course ofthat relationship.” (Stats. 1967, ch. 650, § 3, p. 2006, italics added.) This change has been explained as follows: “ “The commentof the Law Revision Commission to the 1967 amendment makesclear the scope of the amendment. “The express inclusion of ‘a legal opinion’in the last clause will preclude a possible construction ofthis section that would leave the attorney’s uncommunicatedlegal opinion—whichincludes his impressions and conclusions—unprotected bythe privilege. 9309 Such a construction would virtually destroy the privilege.” [Citation.]” (Fireman’s Fund Ins. Co. v. Superior Court, supra, 196 Cal.App.4th at p. 1273; Benge v. Superior Court (1982) 131 Cal.App.3d 336, 345 [the “express inclusion ofa ‘legal opinion’ in the last clause of section 952 precludesinquiry into the lawyer’s uncommunicated impressions and conclusions concerning the case”].) Thus, the County avers, the challenged language was notincludedto limit the privilege to only those communications encompassingthe attorney’s legal opinion;if a legal opinion wasnot part ofthe original definition of confidential communication, it cannot have been a required element. We agree. The Legislature’s intent in amending Evidence Code section 952 wasclearly not 14 to restrict privileged communications to those containing a legal opinion, but to protect uncommunicated opinions. Although the 1967 amendmentdoesnotdefinitively suggest ‘ what was intendedbytheoriginal use of the phrase “includes advice given by the lawyer,” the amendedstatute’s use of the conjunctive “and”to link “a legal opinion formed”with “the advice given” does not readily suggest a communicationis privileged only if it contains an attorney’s advice. Certainly, nothing in the California Law Revision Commission’s comments to Evidence Codesection 952,as originally enacted, suggests such an intent. (See Cal. Law Revision Com. com., reprinted at 29B pt. 3A West’s Ann, Evid. Code (2009 ed.) foll. § 952, pp. 307-308.)4 Moreover, we must construe Evidence Code section 952 to avoid absurd results and effectuate the Legislature’s intent. As the County points out, the construction suggested by the ACLU would be problematic when a communication originates with the client. A client’s letter or email to his or her attorney is unlikely to contain a legal opinion or legal advice, yet there is little doubt most such communications wouldfall within the statutory definition. Further, the “fundamental purpose behind theprivilege is to safeguard the confidential relationship between clients and their attorneys so asto promote full and open discussion of the facts and tactics surroundingindividual legal matters.” (Mitchell v. Superior Court, supra, 37 Cal.3d at p. 599; Citizensfor Ceresv. Superior Court (2013) 217 Cal.App.4th 889, 912 [the “purpose of the attorney-client privilege is to enhancethe effectiveness of our adversarial legal system by encouraging full and candid communication between lawyers and clients”].) These goals would not be furthered if clients and attorneys were uncertain whether their communications contained sufficient advice or opinion to qualify as confidential communications. Such a constricted view of Evidence Code section 952 would chill, rather than encourage, robust 4 The Law Revision Commission’s commentsreflect the Legislature’s intent in enacting Evidence Code section 952. (Arellano v. Moreno (1973) 33 Cal.App.3d 877, 884; Assem. Com. on Judiciary, Rep. on Assem.Bill No. 333 (1965 Reg. Sess.) 1 Assem. . J. (1965 Reg. Sess.) p. 1712; Sen. Com. on Judiciary, Rep. on Assem. Bill No. 333 (1965 Reg. Sess.) 2 Sen. J. (1965 Reg. Sess.) p. 1573.) 15 discussion betweenclients and their lawyers. And, the ACLU’s proposed construction of Evidence Code section 952 appears impractical in light of Evidence Code section 915. Unlike in manyotherjurisdictions, absent the client’s consent, in California a trial court is generally not permitted to require disclosure of materials assertedly protected by the attorney-client privilege for in camera review in orderto rule uponthe claim ofprivilege. (Costco, supra, 47 Cal.4th at p. 736; Citizensfor Ceres, supra, at p. 911.) Thus,if the parties disagree about whether communications are protected by the attorney-client privilege,it is unclear how their claims could be adequately adjudicated if resolution of the issue turned on the content of the disputed communications.> | In any event, the interpretation advanced by the ACLU does not comport with existing authority. “During thecourse ofthe attorney-client relationship, the protected communication may consist of information transmitted between a client and his lawyer, advice given by the lawyer, or a legal opinion formed and given by the lawyerin the course ofthat relationship.” (Benge v. Superior Court, supra, 131 Cal.App.3dat p. 345; Mitchell v. Superior Court, supra, 37 Cal.3d at p. 601 [warningsto plaintiff from her attorney about the effects of chemical exposure were privileged even though they . involved factual. information as opposedto legal advice]; People v. Bolden (1979) 99 Cal.App.3d 375, 379 [Evidence Code section 952 “uses ‘legal opinion’ to specify one type of information protected”]; 2 Witkin, Cal. Evidence (Sth ed. 2012) Witnesses, § 111, p. 409 [The protected communication may beeither ‘information transmitted between a eo 8client and his or her lawyer’ or ‘advice given by the lawyer’ ” or ‘a legal opinion 5 Of course, a litigant might be required to reveal some information in camerato enable the court to determine whether a communicationis subject to the attorney-client privilege. (Costco, supra, 47 Cal.4th at p. 737.) Evidence Code section 915 “doesnot prohibit disclosure or examination of other information to permit the court to evaluate the basis for the claim”ofprivilege, such as whetherthe privilege is held by the party asserting it, whether the attorney-client relationship existed at the time the communication was made, or whetherthe client intended the communication to be confidential. (Costco, at p. 737.) And, a party is free to request an in camera review of the communicationsat issue to aid the-court. (/d. at p. 740.) 16 formed’ even though not communicated to the client”].) The ACLUcites no authority in which a communication betweenattorney andclient, arising out of the attorney’s legal representation of the client, was held to be outside the scope of Evidence Codesection 952 becauseit did not contain a legal opinion or advice. Costco compels rejection of the ACLU’s position. There, Coscto retained a law firm to provide legal advice on whether someof its managers were exempt from California’s wage and overtime laws. Thefirm’s attorney, Hensley, confidentially interviewed two Costco managers, and, based in part on those interviews, produced an opinionletter for Costco. Subsequently, certain Costco employeesfiled a class action claiming that Costco had misclassified and underpaid its managers. In the course of that litigation plaintiffs sought to compel discovery of Hensley’s opinion letter. Costco asserted the attorney-client privilege and the work product doctrine. Over Costco’s objection the trial court ordered an in camera review of the opinionletter to determine the merits of Costco’s claims ofprivilege. It subsequently ordered disclosure. Portions of the letter containing Hensley’s impressions, observations, and opinions were redacted, but portions concerning factual information about various employees’ job responsibilities were disclosed. (Costco, supra, 47 Cal.4th at pp. 730-371.) The California Supreme Court held this was error: “the attorney-client privilege attach[ed] to Hensley’s opinionletter in its entirety, irrespective of the letter’s content.” (Costco, supra, 47 Cal.4th at p. 731.) The court explained: “The party claiming the privilege has the burdenofestablishing the preliminary facts necessary to support its exercise, i.e., a communication madein the course of an attorney-client relationship. [Citations.] Once that party establishes facts necessary to support a prima facie claim of privilege, the communication is presumed to have been madein confidence and the opponentofthe claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply.” (Jd. at p. 733.) “That Costco engaged Hensleyto provide it with legal advice and that the opinion letter was a communication between Costco’s attorney (Hensley) and Costco are undisputed. The letter was ‘confidential,’ defined as ‘information transmitted between a 17 client andhis or her lawyerin the course of[the attorney-client] relationship and in confidence by a means which,so far asthe client is aware, discloses the information to no third persons... .’ ” (/bid.) “That Hensley’s opinion letter may not have been prepared in anticipation oflitigation is of no consequence; the privilege attaches to any legal advice given in the course of an attorney-clientrelationship.” (/bid.) Accordingly, — Costco had made out a primafacie claim ofprivilege. (/bid.) The court went on to explain: “The attorney-client privilege attaches to a confidential communication between the attorney and the client and bars discovery of the communication irrespective of whetherit includes unprivileged material.” (Costco, supra, 47 Cal.4th at p. 734.) Pointing to Mitchell v. Superior Court, supra, 37 Cal.3d 591, the court observed: “ ‘Neither the statutes articulating the attorney-client privilege nor the cases which have interpreted it make any differentiation between “factual” and “legal” information.’ ” (Costco, at p. 734.) “[W]hen the communication is a confidential one between attorney andclient, the entire communication, includingits recitation or summary of factual material, is privileged. ... [If] the factual material referred to or summarized in Hensley’s opinionletter is itself unprivileged it may be discoverable by some other means,butplaintiffs may not obtain it by compelling disclosure ofthe letter.” (Ud. at p. 736.) Costco then turnedto analysis of whetherthetrial court had erred by ordering in camera review ofthe letter. The court concluded such review was improperin light of Evidence Code section 915. (Costco, supra, 47 Cal.4th at pp. 736-739.) Significant for our purposes here, Costco reasoned: “[B]ecause the privilege protects a transmission irrespective of its content, there should be no need to examinethe contentin order to rule on a claim ofprivilege.” (/d. at p. 739.) Finally, the court disapproved anearlier decision, 2,022 Ranch v. Superior Court (2003) 113 Cal.App.4th 1377. At issue there were communications transmitted to an insurer from in-house claims adjusters, who were also attorneys. The insurer claimed all the communications wereprivileged as involving legal advice from its attorneys, whereas the petitioner asserted the attorneys had been acting as claims adjusters, not counsel. 18. (Costco, supra, 47 Cal.4th at p. 739.) The appellate court had distinguished communicationsreporting the results of factual investigations from those reflecting the rendering of legal advice, and held onlythe latter were privileged. (Ibid) Costco held this was error: “The proper procedure would have beenforthetrial court first to determine the dominant purpose ofthe relationship between the insurance company and its in-house attorneys, i.e., was it one of attorney-client or one of claims adjuster- insurance corporation. ...” (dd. at pp. 739-740.) “If the trial court determined the communications were made during the course of an attorney-client relationship, the communications, including any reports of factual material, would be privileged, even though the factual material might be discoverable by some other means.” (/d. at p. 740.) Costco teachesthat the proper focusin the privilege inquiry is not whether the communication contains an attorney’s opinion or advice, but whether the relationship is one of attorney-client and whether the communication was confidentially transmitted in the courseofthat relationship. Costco did not state, when describing the requisite preliminary showing,that the party claiming the privilege had to show the communication contained an opinion, advice, or indeed any particular content; rather, the preliminary facts necessary were “a communication madein the course of an attorney- client relationship.” (Costco, supra, 47 Cal.4th at p. 733.) Costco appears to have disapproved a content-basedtest for determination of the attorney-client privilege, in that it did not distinguish between the factual or legal aspects of the communications. Instead, the inquiry turned on whether there was an attorney-client relationship between the parties to the communication. Of course, in Costco, the communication at issue was an opinion letter, which by definition must have contained the attorney’s legal opinions. But Ccostco’s analysis did not hinge uponthis circumstance; instead, it made clearthat the privilege protects a “transmission irrespective of its content.” (/d. at pp. 739, 731.) Costco is therefore fatal to the claim that Evidence Code section 952 applies only to communicationsthat contain a legal opinion or advice. 19 _ b. Application here Weturn,then, to the question of whether the County metits burden of establishing the preliminary facts necessary to support application of the privilege,that is, a communication made in the course of an attorney-client relationship. (Costco, supra, 47 Cal.4th at p. 733; see Citizensfor Ceres v. Superior Court, supra, 217 Cal.App.4th at p. 911.) That the law firms in question were retained to provide the County with legal advice in the matters to which the invoices pertained is undisputed; indeed, the fact of the representation was the reason the ACLU made the CPRA requests. There is also no dispute that the invoices constituted information transmitted by the law firmsto the County in the course of the representation. (See Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 123 [where underlying facts were undisputed, petitioners met their burden to show preliminary facts necessary to support a prima facie claim ofprivilege].) Appendedto the County’s brief in answerto the petition below was the declaration of Roger H. Granbo, an Assistant County Counsel in the Law Enforcement Division of the Los Angeles County Counsel’s Office. Granbo declared, under penalty of perjury, that his duties included supervising outside counselin their representation of the County and other public agencies for which the Board was the governing body. His duties included processingbilling invoices, and he was familiar with the manneroftheir processing. He believed such invoices were subject to the attorney-clientprivilege and kept “these documents and the information they contain, confidential.” He further declared that “we make every effort to confine distribution of this material and information to our office alone, and to authorized representatives of the client, who are similarly required to keep the information confidential. That is our intent and policy as a general matter and in this particular matter.” Thetrial court did not expressly rule on whetherthe declaration established the requisite confidentiality, but neither the court nor the ACLU appearto question its sufficiency. Thus, the invoices were confidential communications between attorney and client within the meaning of Evidence Code section 952. 20 Thetrial court’s contrary ruling stated that the County had to do more than claim the documents were confidential, because “Evidence Code section 952 does not automatically apply to any communication between an attorney andhisor her client.” In support, the court cited People v. Gionis (1995) 9 Cal.4th 1196, 1210. The court was certainly correct that not all communications involving an attorney are ipso facto privileged. As Gionis explained: “We cannot endorse the . . . view that the attorney- client privilege applies wheneverissues touching upon legal matters are discussed with an attorney. That has never been the law. Significantly, a communication is not privileged, even though it may involvea legal matter, if it has no relation to any professional relationship of the attorney with the client. [Citation.] Moreover,it is not enoughthat the client seek advice from an attorney; such advice must be sought from the attorney ‘in his professional capacity.’ ” (Jd. at p. 1210.) In Gionis, the defendant’s statements to his friend, an attorney, were all made after the attorney had declinedto represent him, and thus were notprivileged. (/d. at pp. 1210-1212.) The privilege also does not apply “when the attorney acts merely as a negotiator for the client oris providing business advice [citation]; in that case, the relationship betweenthe partiesto the communication is not one of attorney-client.” (Costco, supra, 47 Cal.4th at p. 735.) But none of these circumstances werepresent here. It is undisputed that the County engaged the law firmsto representit in the lawsuits, and the invoices arose from those very lawsuits. Thetrial court’s ruling also stated that the County had failed to assert specific facts demonstrating “how the challenged documentqualifies as a privileged communication.” Presumably, thetrial court meant the County had to do more to show the content of the communications wasprivileged. However, as Costco explained, “because the privilege protects a transmission irrespective of its content, there should be no need to examine the content in order to rule on a claim ofprivilege.” (Costco, supra, 47 Cal.4th at p. 739.) The court also reasoned that the County had failed to show how,with proper redactions, the billing statements would qualify as privileged communications. But, “when the 21 communication is a confidential one between attorney andclient, the entire communication”is privileged. (/d.at p. 736.) The ACLU argues that the CPRA mustbe broadly construed, and the exemptions to it must be narrowly construed. (Cal. Const., art. I, § 3, subd. (b)(2) [a statute “shall be broadly construedif it furthers the people’s right of access, and narrowly construedif it limits theright of access”]; Anderson-Barker, supra, 211 Cal.App.4th at p. 60; Marken v. Santa Monica-Malibu Unified School Dist. (2012) 202 Cal.App.4th 1250, 1262.) But, the CPRA expressly exempts from disclosure records that are privileged underthe relevant provisions of the Evidence Code. The attorney-client privilege is also anchored in public policy (Roberts v. City ofPalmdale, supra, 5 Cal.4th at p. 380; Citizensfor Ceresv. Superior Court, supra, 217 Cal.App.4th at p. 913). As we have explained, the invoices in question fall within the express parameters of Evidence Code section 952. We may not disregard the plain application ofthe statute underthe guise of narrow construction. A narrow construction of an exceptionthat is a statutory privilege cannot reasonably be construed to be narrowerthan the scope ofthe privilegeitself. The ACLUalso contends that public accessto the billing records in question is a matter of utmost public importance. It urges that the “public has a right to know howits governmentis using—or misusing—taxpayer money,especially when that moneyis being used to defend against lawsuits relating to allegations of excessive force by County employees, whichitself is of public interest.” They point to authority observing that “[i]t is difficult to imagine a morecritical time for public scrutiny of its governmental decision-making process than whenthelatter is determining howit shall spend public funds.” (San Diego Union v. City Council (1983) 146 Cal.App.3d 947, 955.) We agree that significant public interests are involved. But, as noted, our Supreme Court has observed that where the attorney-client privilege applies, disclosure may not be ordered, without regard to relevance, necessity or the particular circumstances ofthe case. (Costco, supra, 47 Cal.4th at p. 732.) And, while the invoices themselvesare privileged, _ information that is not otherwise privileged does not become so merely by being 66 & 6transmitted to, or in this case from, an attorney. While the privilege fully covers 22 communications as such,it does not extend to subject matter otherwise unprivileged merely because that subject matter has been communicated to the attorney.” ’” (Ud. at p. 735; Edwards Wildman Palmer LLP v. Superior Court (2014) 231 Cal.App.4th 1214, 1234.) Therefore, to the extent the information the ACLU seeksis available in a nonprivileged source, the fact the invoicesare privileged does not necessarily protect the _—— informationitself.® Next, the ACLU urges that application of the attorney-client privilege to billing records will “wreak havoc with the procedures for seeking fees under state and federal fee shifting statutes. If an attorney’s billing descriptions are categorically privileged, ... statutes, cases, and courts’ procedural requirements would,in effect, require prevailing parties to routinely violate the attorney-client privilege and work product doctrine to recover” fees to which they are entitled. We believe this concern is overstated. The Evidence Code provides an exceptionto the privilege when there has been a breach of duty arising out of the lawyer-client relationship. (See Evid. Code, § 958; Carlson, Collins, Gordon & Bold v. Banducci (1967) 257 Cal.App.2d 212, 227-228 [“It is an established principle involving the relationship of attorney andclient that an attorney is released from those obligations of secrecy which the law places upon him wheneverthe disclosure of the communication, otherwise privileged, becomesnecessary to the protection of the attorney’s own rights”].) Detailed billing statements are not always necessary to support a fee award. (See Concepcion v. Amscan Holdings, Inc., supra, 223 Cal.App.4th at p. 1324, and authorities cited therein [“TIt is not necessary to provide detailed billing timesheets to support an award of attorney fees under the lodestar method”].) And, of course, a client is free to waive the attorney-client privilege, thereby allowinghis or her attorneys to provide detailed time records when necessary to support a 6. Because we conclude the attorney-client privilege precludes discovery of the billing records, we express no opinion as to whether the information contained in the billing records might be discoverable by some other means. 23 request for attorney fees. (See Evid. Code, § 912, subd. (a) [privilege is waivedifthe holder “has consented to disclosure made by anyone”].) Because we conclude the County metits preliminary burden to show the requested records were confidential communications within the meaning of Evidence Codesection 952, we grant the County’s petition and order the superior court to vacate its order compelling disclosure. In light of our conclusion, we do notreachthe parties’ contentions regarding application of the CPRA’s “catchall” exemption or Business and Professions Code sections 6149 and 6148, 24 DISPOSITION The petition is granted. The superior court is directed to vacateits order compelling the County to disclose the records requested in the ACLU’s July 1, 2013 CPRA request. CERTIFIED FOR PUBLICATION ALDRICH,J. Weconcur: EDMON,P.J. KITCHING,J. 25 PROOF OF SERVICE I am employedin the City and County of San Francisco, State of California. I am overthe age of 18 and nota party to the within action. My business address is Davis Wright Tremaine LLP, 505 MontgomeryStreet, Suite 800, San Francisco, California 94111-6533. On May26, 2015, I served the foregoing document(s) describedas: PETITION FOR REVIEW on the interested parties in this action as stated below: Timothy T. Coates, Esq. tcoates@gmsr.com Barbara W.Ravitz, Esq. bravitz@gmsr.com GREINES, MARTIN, STEIN & — RICHLAND, LLP Phone: (310) 859-7811 5900 Wilshire Boulevard, 12™ Floor Fax: (310) 276-5261 Los Angeles, CA 90036 Attorneysfor Petitioners COUNTY OF LOS ANGELES BOARD OF SUPERVISORSand THE OFFICE OF COUNTY COUNSEL John F. Krattli, County Counsel Roger H. Granbo, Asst. County Counsel Jonathan McCaverty, Dep. County Counsel jmccaverty@counsel.lacounty.gov 648 Kenneth Hahn Hall of Administration 500 West Temple Street Phone: (213) 974-1828 Los Angeles, CA 90012-2713 Fax: (213) 626-2105 Attorneys for Petitioners COUNTY OF LOS ANGELES BOARD OF SUPERVISORS and THE OFFICE OF COUNTY COUNSEL Hon. Luis A. Lavin Frederick R. Bennett III, Esq. Los Angeles Superior Court Court Counsel Department 82 Los Angeles Superior Court 111 North Hill Street 111 North Hill Street, Room 546 Los Angeles, CA 90012 Los Angeles, CA 90012 Clerk of the Court Court of Appeal of the State of California Second Appellate District Ronald Reagan State Building 300 S. Spring Street 2nd Floor, North Tower Los Angeles, CA 90013 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROAST, SUITE 2400 PROOF OF SERVICE LOS ANGELES, CALIFORNIA 90017-2566 DWT 26890598v1t 0200646-000001 (213) 633-6800 Fax: (213) 633-6899 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i] (BY MAIL)By placing a true copy of the foregoing document(s) in a sealed envelope addressed as set forth above. I placed each such envelopefor collection and mailing following ordinary business practices. I am readily familiar with this Firm’s practice for collection and processing of correspondence for mailing. Underthat practice, the correspondence would be deposited with the United States Postal Service on that same day, with postage thereon fully prepaid at Los Angeles, California, in the ordinary course of business. I am aware that on motion of the party served, service is presumedinvalid if postal cancellation date or postage meterdateis more than one day after date of deposit for mailing in affidavit. Executed on May 26, 2015, at San Francisco, California. State I declare under penalty of perjury, under the laws of the State of California, that the foregoingis true and correct. Marcus Hidalgo ZF Print Name “SignatureH ~ DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROAST, SUITE 2400 PROOF OF SERVICE LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 DWT 26890598v 1 0200646-000001