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, Reply Brief on the MeritsCal.January 13, 2016No. 8226645 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES BOARD OF SUPERVISORS,et al., Petitioners, V. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; ACLU OF SOUTHERN CALIFORNIA,etal, >YRREME COURT | FILED Real Parties in Interest. JAN £3 2016 Review After Order Denying CPRA Request Frank A. McGuire Clerk Second Appellate District, Division Three Deput Case No.: B257230 opuly On Appeal from the Los Angeles Superior Court The Honorable Luis A. Lavin Sup. Ct. Case No.: BS145753 REPLY BRIEF ON THE MERITSOF REAL PARTIES IN INTEREST ACLU OF SOUTHERN CALIFORNIA AND ERIC PREVEN 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 Diana Palacios (SBN 290923) - Los Angeles, CA 90017 DAVIS WRIGHT TREMAINE LLP Tel.: (213) 977-9500 865 S. Figueroa, Suite 2400 Fax: (213) 977-5299 Los Angeles, California 90017 Tel: (213)633-6800 Fax: (213) 633-6899 Attorneysfor Real Parties in Interest ACLU OF SOUTHERN CALIFORNIAand ERIC PREVEN No. 8226645 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES BOARD OF SUPERVISORS,etal., Petitioners, V. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; ACLU OF SOUTHERN CALIFORNIA,et ai., Real Parties in Interest. Review After Order Denying CPRA Request Second Appellate District, Division Three Case No.: B257230 On Appeal from the Los Angeles Superior Court The Honorable Luis A. Lavin Sup. Ct. Case No.: BS145753 REPLY BRIEF ON THE MERITSOF REAL PARTIES IN INTEREST ACLU OF SOUTHERN CALIFORNIA AND ERIC PREVEN 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 Diana Palacios (SBN 290923) . Los Angeles, CA 90017 DAVIS WRIGHT TREMAINE LLP Tel.: (213) 977-9500 865 S. Figueroa, Suite 2400 Fax: (213) 977-5299 Los Angeles, California 90017 Tel: (213) 633-6800 Fax: (213) 633-6899 Attorneysfor Real Parties in Interest ACLU OF SOUTHERN CALIFORNIA and ERIC PREVEN TABLE OF CONTENTS Page I, INTRODUCTIONuuccccssssscccccscsssccsscsacesseceserseseeceseceeesececcees 1 Il. ARGUMENT..0........ccccccsssesesecscccscosssnscccccessssssssassesecececsteceseeccessecescesees4 A. The Court of Appeal Should Have Followed the Constitutional Mandate to Narrowly Interpret Section 952. ...4 B. The Statutory Language, Legislative History and California Cases Support ACLU’sInterpretation of SECTION 952. oeeeccessseseesesceesescesscsessevssscssseussccssssaserscsecaeceusens9 1. Section 952 Is Inherently Ambiguous.............c cece9 2. Section 952’s Legislative History Strongly Supports ACLU’s Interpretation of the Attorney- Client Privilege. oo... .cccccccssessescseesssscsssssscecssceseeseesacaes 11 3. An Attorney’s Communications with a Client Are Not Privileged Where They Fall Outside of the Purpose of the Legal Representation. .........0.ccceeeeeee 14 4, Noneofthe County’s Arguments Justifies the Broad Interpretation of the Privilege That It Seeks. ...21 5. Case Law Developedin the Fee Litigation Context Also Demonstrates that Invoices Are Not Privileged. oo... eeesesesessesessssessesseecseseescscsssstececteesesaes24 C. The County’s Arguments Ignore the Real-World Application of the Rule It Seeks... eccssessseseeseceseeceees27 1. Contrary to the County’s Claim, ManyClients Have NoIncentive to Support their Lawyer’s Fee MOtion......esesesecsssecesessescescsesseessesessescsessesssvescssseseees27 2. Invoices May Not Be Required in All Cases in Which Fees Are Sought, but Many Fee Disputes Cannot Be Fairly Resolved Without Them................31 TH. CONCLUSIONwccscscsscssccssessesensessessessecsssessssssssscseeseseceesaas35 TABLE OF AUTHORITIES Page(s) CASES 2,022 Ranch v. Superior Court (2003) 113 Cal.App.4th 1377 oo. ceesescssssscssssssessesssesscsecseesessevsscsescsssevseeacsecsesavacsaesacescsavacees 17 Agster v. Maricopa County (9th Cir. 2005) 422 F.3d 836 woccsssssscsessssceccsecscescnsoessesesssssssessssssessessssesscssssssssessaceeecsucacssseeavseescatsaess31 Bell v. Vista Unified Sch. Dist. (2000) 82 Cal.App.4th 672 .o.cccccccscseseesesessesssessssssesssssssessescsesessvsseessvscevacseresaeatavessesaeasacsvars32 Bighorn-Desert View Water Agency v. Verjil (2006) 39 Cal.4th 205 vo cccccscseseecsscssctecnessessssesesesssessessesseetsseessessssscsssaseuesesscestaceusanenseas 6, 23 Calvert v. State Bar (1991) S4 Cab.3d 765 cccsescssesesscsesscressecssesssenesessssssssssesessseecsessssestssssssacsssvaccavscassesarensasencans 10 CBS, Inc. v. Block (1986) 42 Cal.3d 646... ecscseccssscsscssssscseceesescnsessssseeesscsessessessessessesssssevssscsevavsaseusaesevseearenseasanens 1 City ofHemet v. Superior Court (1995) 37 CalApp.4th 141teessssssecsssessessssessssssssesscssessesesevscssssscssssssssevscssessseusseesevaeenes24 Concepcion v. Amscan Holdings, Inc. (2014) 223 Cal.App.4th 1309oeceeeecsecsecsctsssesescsecsecsessseseesseeesssssesssssscsstarsecaceecaesaeeaesaenaes27 Costco Wholesale Corp. v. Superior Court (2009) AT Cal.4th 725 voccsccsscsssssssessessssssenescnessesseresssevsnsessesessssesessssesseessesesscsssacsvavenevaseees passim County ofLos Angeles v. Superior Court (2012) 211 Cal.App.4th 57... eescsssssesessesssssscsssssssesessssecsecsecseessesssssscssacseescsarsesacenseres23, 24 Evansv. JeffD. (1986) ATS U.S. TT ccccecetsssesscscrsssnecsesssesscessssasscssesessseeessevsssesesssasesesessessssevaccsesscsssesenssensevaes30 Ferguson vy. Ash (1915) 27 Cal.App. 375 vscccccssscsessesscseccsessesssersestsesesssesessesseseesssesacsecassuscscsssseevacscncavsecaceasacas 12 Fireman’s Fund Ins. Co. v. Superior Court (2011) 196 Cal.App.4th 1263...cecscssescescssesssessessscsessssssssssssesessesssscsevsversceessucavagerseueatenseas 10 Gordon v. Superior Court (1997) 55 CalApp.4th 1546... scscescsecsssssssssssessesesscsecsesssessesessvssvscscsevsvevsacacessacsesaucnesasenses 8 il Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140........seneeusaeessseesacesesseesesssasonsdeeeesacessssessssesssssensesescusessussensesasaueesees28 Harmanv. City and County ofSan Francisco (2007) 158 CalApp.4th 407ooccccsssssssssssssessssscsscessecssssscsecsessessevseacscssessevarsaassasatsceacners28 _ HartfordCasualtyIns.Co.v.. J.R..Marketing(2015). 61 Cal. 4th 988occsacsescsseceneseseeeenseseecsesesseassesesssessssscsessecscseserseseetacaeacans passim Hoot Winc, LLC v. RSMMcGladrey Fin. Process Outsourcing, LLC (S.D. Cal. Nov. 16, 2009) 2009 WL 3857425 vcscescsescscesscesceecssscsesesessssesssseesecasecsssssescsssssceessaserauccacseesecas 30, 31 Hotel Employees & Restaurant Employees Int'l Union v. Davis (1999) 21 Cal.4th 585ooceencssecesseetsensssesssesssesssscsessesseesssssscscsvscssscsssvsvecaseasacsaasacscavavacanes 5 Huverserian v. Catalina Scuba Luv, Inc, (2010) 184 CalApp.4th 1462occccesecesessssesssesenssesseseessssssseseeeessesssesssssscsssecarsncesasvesseasenes20 Int'l Federation ofProfessional & Technical Engineers v. Superior Court (2007) 42 Cal4th 319icccssssssscscsessssessesessesesesssecessssessscssssesevsasseevecessessssssvesseeesssensreeseuesars6 Ketchum v, Moses (2001) 24 Cal.4th 1122. ceccecsssssssssssessssesescsesscsessssescscssesecscscsesessessesssscsesussesecaranacseeacsesseeveaes32 Kroll & Tract v. Paris & Paris (1999) 72 Cal.App.4th 1537ccc cssscesssssssssesssssessessssesssesecssesscsscssseesscssssssessescsesaccasnesssssacacaees 8 Lantz v. Workers’ Comp. Appeals Board (2014) 226 Cal.App.4th 298 ooo. cecscsccenssscecssesssecseesesesescssssessevssscsscsssevsevsvecceessacsscescacseenees 10 Mitchell v. Superior Court (1984) 37 Cal.3d S91 voces cescssesssccsecseensssessssssesssesseseesssesesseesssecssesesssssesssssscsavecasesessrsceasass 18, 19 Montebello Rose Co. v. Agric. Labor Relations Bd. (1981) 119 CabApp.3d Lecccsecesesessceersscsessscessssessescesesssesssscssessssesscssssesssesecssescaccaracaverees 16 Musser vy. Provencher (2002) 28 Cal.4th 274.ccccssscscscssestesssssescesssssssecsseesssssesssesseessssssessssecscssssssvacaessctssercacstaseeaes 8 Ong v, Cole (1920) 46 CalApp. 63 wo. ccccsccssssssesesesssscessssesessstsescsessesesesssessesssesssssnsstsessssssvacaceesasececsaearaasas 12 People v. Arias (2008) AS Cal.4th 169.cccssscsessesessssseesescnsssesensesessessesseessesscasecsesesssesscscesssssceasrenseseeetavaces20 People v. Bolden (1979) 99 Cal.App.3d 375... essecsecssssensensesnscntessssseesesssanesessessecasessssneeseessseesseesncsaesneeneeesnesen 10 ill People v. Flores (1977) 71 Cal.App.3d 559 .cccecesscssecssecesesescsssesessesessssssesessesesecseosssssessaeseavassesesavavavacacscacaces 8 People v. Sinohui (2002) 28 Cal4th 205ocessescceseesssessssssesesssssecsesecsssssssescsvsssssessssassssssesaesecssesegucasicatsevecensnsess9 Ralls v. United States (9th Cir. 1995) S2 F.3d 223 ceccscsscsesssssescsssscsrssesssccsseseerssecssscesesevssesssssesscsesesscessssssavsvassvacsusecarscereeswl Roberts v. City ofPalmdale (1993) 5 Cal.4th 363 occ cesessessssssesecccesssessesssssessessesacsessssessesssesessssssavssssesscavsvavsvseasenaes 10, 18 Sierra Club v. Superior Court (2013) 57 Cal.4th 157ccecescesessesesesesesessssssescsessesessesssecssssessussssssacssesssssesacsususaversasersateeses4,7 Sierra Vista Hospital v. Superior Court (1967) 248 CalApp.2d 359 voiescsescsssessesscssscssccsscesessessesesescsevsesscsssssvecsessusssacaessacanseacs26 Slocum v. State Board ofEqualization (2005) 134 Cal.App.4th 969oocessessssesscseesssseesessesssssessesssatessecsssasecsacevecacecassvssseeusataenses 6 Smith v. Laguna Sur Villas Community Assn. (2000) 79 Cal.App.4th 639... ccc cccccscscssssssesscsesesseesecsecssesesssssscsecsseecsurscsevsccessesscscaeseseaeeacaees25 Sommers y. Erb (1992) 2 Cal.App.4th 1644oosccscscscsssssssessssessesseesesssssssescsesecsecssssssessssessseesavssssaseessevavaees 32 Southern Cal. Gas Co. v. Public Util. Com. (1990) . S50 Cal.3d 31 ccescsscsssesscessescessscsssecsecseeecsesseeseesesenssssssseceseevsecssessssesesecevererseeecaceacates34 St. Croix v. Superior Court (2014) 228 Cal.App.4th 434ceesccescsssscsssseseesesssesesssessssssssesesscesssssssscsevscescacuavstscacseacenes 7,8 Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228ieecsseseecssssessssessesssccsssesesessssccssscsusscsacsesarsevstassvaseetseeucnees28 Travelers Ins. Co. v. Superior Court (1983) 143 Cal.App.3d 436 wo... esccsssceessssesscsessssessscsssesesssssssecsesssessstcsscsessssessvacavacesaceasaees26 United States v. Blackman (9th Cir. 1995) 72 F.3d 1418 veeeeescsecsesscesescsssesesssssessssessessseescssssseetesscessssssevsseseuaceasatscseaceseaseucaens3] Wilcox v. Arpaio (9th Cir. 2014) 753 F.3d 872 .scsccscsscssssceccsssseeceesssssescssesstsesssaesecesseseescsesssessssesecssseseesassasavasesseeaeaceasaees31 iv eg th R R R e e e BR Ic a e STATUTES Business & Professions Code § 6149 .....cccsccscsssssssssssesesescssssessssssssscesessvssesssacsceeseseesees23 Code Civ. Proc. § 1032(a)(4) ...cecsecscsessssesecsssessscsssvssssvscscsscevssacsssssussssvavsvesacavavevereseveseese28 Code Civ. Proc. § 1881 .c.ceesesessssssssesesssssssscscscscscsecsssvssavscevsvacasatscssesssavssssevaseesevevess 3, 21 Evidence Code § 952 wo.ccccecccccsssssssscssctersessssseesesseceacssessaccesssesssesuttattatstteteese,2, 4,9, 10 Gov't Code § 12900...cetesssesssesesessessscsesssscscsssssssesvssssesssesssesseesesssssssessesessssesevenevees28 Gov't Code § 12965(b) oo... eee ecsscssesesssssecsesssssessssssssscsrssecsesavssseacssatsasavasassesssaveveceesaveeeese28 CONSTITUTIONAL PROVISIONS Cal. Const. Article 1, § 30D)... ecsscscsscsscsscssctscsecsrarscessssssesssssssssosasecverseseceesess2, 5, 8, 35 Cal. Const. Article 1, § 3(D)(5) w.cccccccscssssssscsccscsssseseseersssesessesevsssssesssssesisececsesevsssesececsesees 5 OTHER AUTHORITIES . Note, Attorney-Client Privilege in California, 10 Stan. L. Rev. 297, 301 (1957-1958)...sssssccsessscsssecsssssssessscessssssssssecsssssecssssessssesnssceusussscsssssessessssissesesssasevecesseeeee 12 I. INTRODUCTION [1]mplicit in the democratic process is the notion that government should be accountable for its actions. In order to verify accountability, individuals must have accessto governmentfiles. Such access permits checks against the arbitrary exercise of official power and secrecy.in thepolitical process. CBS, Inc. v. Block (1986) 42 Cal.3d 646, 651. The ACLUseekscopies of invoicesreflecting fees and costs billed to the County ofLos Angeles by outside counsel in detainee abuse and neglect cases - an annual taxpayer expenseoftens of millions of dollars (II P.E. 5:352) - redacted to remove any languagereflecting privileged information. The Court of Appeal held thatthe invoices areprivileged in their entirety, but in doing so, it overlooked the interpretation ofthe privilege recognized by former Chief Justice George in his concurrencein Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725 (“Costco”) - that the privilege only applies to communicationsthat are intended to advance the purpose of the legal representation, such as seeking or delivering legal advice or opinion. See id. at 743 (George, C.J., conc). Asthe ACLUestablishesin its Brief on the Merits (““B.O.M.”) and below, Chief Justice George’s interpretation is correct, and thusthe privilege does not apply to communications whose purposeis to obtain paymentforlegal services. The Legislature never intended the broadprivilege that the County advocatesin this case. However, if there were any question about the Legislature’s intentin enacting Section 952, that uncertainty is resolved by Article I, § 3(b) of California’s Constitution (“Section 3(b)’’). Under this constitutional mandate, courts must narrowly interpret statutes - such as Evidence Code § 952 (“Section 952”) - that exempt public records from disclosure. The County, its employees andits lawyers are public servants. The County exists to serve the public good, andit is accountable to the public in the decisions it makes. Thus, it is not “absurd” to suggest that a more demanding standard should apply to a Countythattries to avoid disclosing records detailing a tremendouspublic expenditure than the standard that applies to records held by private parties. Answer Brief on the Merits (“A.B.M.”) at 47-48. The County’s argument simply ignores the guiding principle of the California Public Records Act (“CPRA”) and Section 3(b) - that to enhance government accountability, the public has a right to obtain and review public records, and exemptions from that access must be construed narrowly. This mandate applies with particular force to records that demonstrate how agencies spend taxpayer money. See B.O.M.at 15- 16; Section II.A, infra. The County has not metits heavy burden to establish that its records are exempt from disclosure.It tries to convince the Court that the language of Section 952 is so clear and unambiguousthat no room exists for the interpretation offered by the ACLU. But Section 952 is facially ambiguous and has been since the conceptofthe attorney-client privilege wasfirst introduced in California 143 years ago. The Legislature did not define the phrase “in the course of,”noris the statute clear regarding whether the Legislatureintended “confidentialcommunication” toextendtoall= information transmitted confidentially between lawyer andclient (regardless of intent, purpose or context), or instead only to information transmitted to serve the purpose ofthe legal representation, such as attorney advice and opinions. See MJN001283 n.2 (fmr. Code Civ. Proc. § 1881, Subd. 2). But extrinsic aids establish that the Legislature intended the term “confidential communication”to apply only to communications, advice given, and opinions rendered “in the course ofprofessional employment,” i.é., communications to seek or deliver attorney advice and opinions. B.O.M.at 24-25 (citation omitted). Invoices simply do notfall within this definition. Section II.B.1, infra. Andthis definition makes sense. The County’s arguments for secrecy ignore the practical impact of the-rule it asks this Court to apply to all attorney invoices. If clients have the right to deny their lawyers the use of invoices to support the fee award that belongsto the lawyer, they can be expected to exercise that right when they are unhappy with their lawyer’s conductor the result in the case. The County also fails to acknowledge the wide array of circumstances in which invoices may be needed as evidence, such as complicated fee motions (involving apportionmentor lengthy litigation), or insurance indemnity actions. The County’s position invites gamesmanship and would hamstringtrial courts’ ability to demand the evidence they needto fairly evaluate fee motions. Section ILC,infra. The County asks this Court to pay no heed to the factthat this litigation arises under the CPRA,and that the ACLU seekspublic records that will shed light on an issue of tremendous public importance - how the County spends tens ofmillions ofdollars every year to defenditself in lawsuits filed by detainees accusing the County of abuse and neglect. II PE 5:351-360. The County’s concerns aboutprivate litigants are misplaced (A.B.M.at 11) - and can be resolved by a holding that follows Section 3(b) and narrowly interprets the attorney-client privilege in CPRA proceedings. But even without a narrow interpretation, the ACLUstill should prevail. Section 952’s statutory language,the legislative history and public policy all support the ACLU’sinterpretation of the attorney-clientprivilege. Il. ARGUMENT A. The Court of Appeal Should Have Followed the Constitutional Mandate.to Narrowly Interpret Section 952. The County’s claim that Section 3(b) is completely superfluous (A.B.M. at 42 & n.16) ignores the plain language of that constitutional provision, as well as this Court’s decision in Sierra Club v. Superior Court (2013) 57 Cal.4th 157 (“Sierra Club”). The County’s construction would render meaningless the key component of Section 3(b) - the mandate that “[a] statute, court rule, or other authority, including thosein effect on the effective date of this subdivision, shall be broadly construedif it furthers the people’s right of access, and narrowly construedifit limits the right of access.” Cal. Const. Art. I, § 3(b). The County invokes Section 3(b)(5) to support its claim that “Proposition 59 did nothing to change well-settled law ...” (A.B.M. at 42), but that provision does not support that claim. It says only that Section 3(b) does not “repealor nullify ... any constitutional or statutory exception to the rightof access to public records.” Cal. Const. Art. 1, § 3(b)(5) (emphasis added). It certainly does not prohibit the mandated narrowingofexisting exceptions under Section 3(b), as the County claims. A.B.M.at 41. Indeed, the legislative intent to change existing law to enhance access rights is demonstrated by the very different language adopted in Sections 3(b)(3), 3(b)(4) and 3(b)(6) - which all provide that Section 3(b) does not modify the exemptions within the scope ofthose subsections. Plainly, the Legislature intended, and the electorate approved, a different interpretation for the exemptionsthat fall within Section 3(b)(5) - asthis one does. They are subject to a constitutional mandate that they be interpreted narrowly to ensure broad disclosure ofpublic records. The County’s interpretation is contrary to the black-letter law that constitutional provisions prevail over statutes where the two conflict. E.g., Hotel Employees & Restaurant Employees Int'l Union v. Davis (1999) 21 Cal.4th 585, 602; Slocum v. State Board ofEqualization (2005) 134 Cal.-App.4th 969, 977. The broad construction of Section 952 urged by the County necessarily yields to the narrow-construction mandate in Section 3(b). Beyondthat, the County’s interpretation renders the constitutional provision completely meaningless, contrary to the well-established rule requiring courts to give significance to every wordin constitutional enactments. £.g., Bighorn-Desert View Water Agency v. Verjil (2006) 39 Cal.4th 205, 214. Thus,it is the County’s interpretation ~not the ACLU’s - thatis absurd. The County dismisses the ACLU’sinterpretation becauseit may result in a more narrow interpretation ofthe privilege in CPRA cases than in other contexts. A.B.M. at 47-48. But the County does not and cannot explain whythis interpretation would be absurd. Section 3(b) was enacted to guarantee that any uncertainty about the scope of an exemption to public access would weigh in favorof access. It necessarily requires broader disclosure of governmentinformation than other types of information. An interpretation that limits the circumstances in which an agency can deprive citizens of information that informs on government conductis consistent with the well-established rule denying agencies the ability to manipulate their records in order to thwart public access (B.O.M.at 14, discussing Int’l Federation ofProfessional & Technical Engineers v. Superior Court (2007) 42 Cal.4th 319), and required by the Constitution. The County’s discussion ofSierra Club demonstrates the fatal flaw in its argument. A.B.M.at 42-43, 45-46. In Sierra Club, this Court held that its “usual approach to statutory construction [wa]s supplemented by” the constitutional directive to narrowly construe statutes that limit the public’s right of access. See B.O.M.at 18 (citing Sierra Club, 57 Cal.4th at 166). The County’s only responseis to argue that Sierra Club differs because the statute was ambiguousthere, but is not here. A.B.M.at 45. This argumentis simply incorrect; as established in the Brief on the Merits and below, Section 952 is ambiguous in two important respects. See B.O.M.at 18, 24; Section B.1, infra. And importantly, the County makes no meaningful effort to support its interpretation if the Court finds any ambiguity in the statutory language - essentially concedingthat if the Court concludes the language is ambiguous, the County should lose. See A.B.M. at 47. St. Croix v. Superior Court (2014) 228 Cal.App.4th 434 does not support the County’s position. A.B.M.at 43-44. There,the real party in interest argued that the court should “construe the charter[defining the relationship with counsel] narrowly to avoid any limitation on the public’s right of access.” The court, however, held that Section 3(b)(2) did not assist him because the court had “concluded abovethat the charter establishes an attorney-client relationship between thecity attorney and City agencies” andthe real party in interest did “not dispute that conclusion and doesnot claim that a narrower construction of the charter would produce a different result.” 228 Cal.App.4th at 444. Thus, that case did not turn on the question of whetherthe privilege should be broadly or narrowly interpreted. Nor do Musser v. Provencher (2002) 28 Cal.4th 274, Kroll & Tract v. Paris & Paris (1999) 72 Cal.App.4th 1537, Gordon v. Superior Court (1997) 55 Cal.App.4th 1546, or People v. Flores (1977) 71 Cal.App.3d 559, support the County’s claims. A.B.M.at 19. Those cases arose outside of the CPRA context; they necessarily are modified for CPRA requests by Article I, Section 3(b) when there is any reasonable dispute about the scope of the privilege. But even without Section 3(b), they do not control here because none decided whetherthe privilege applied to a particular category of information.’ Thus, while theystate general principles, they do not apply the principles at issue here, and so do not detract in any way from the well-established law establishing the scope oftheprivilege for communications that are not intended to facilitate the exchange of information or advice between lawyerand client. See Section B.3, infra. ' Tn fact, in Gordon the court assumes without deciding that a client’s “canceled checksare not privileged documents, the check stubs may beprivilegedifthe attorney has used them for recording privileged information.” 55 Cal.App.4th at 1557. SU CH EN e A O A R EI R E I R R C E R O D o e C a R R co e t e e S S R B. The Statutory Language, Legislative History and California Cases Support ACLU’sInterpretation of Section 952. 1. Section 952 Is Inherently Ambiguous. The County assumes,with little discussion, that the language of Section 952 is clear and unambiguous andtherefore subject to the plain meaning rule. A.B.M.at 16-24. It cites no pertinent authority to support its claim. Instead, it invokes the now unpublished appellate opinionin this case and simply repeats that Court’s conclusion as thoughit were fact. Id. at 22-23. But the County’s meticulous deconstruction of the statutory language only servesto highlight the inherent ambiguity in the languageat issue in this case. A.B.M.at 20-21 n.4. As the ACLUestablished in the B.O.M., two parts of the statute are ambiguous. First, the phrase “in the course of” does not simply mean “during”or “while,” as the County argues in a footnote, based on nothing except a quotation taken out of context. A.B.M.at 21 n.5 (“the plain meaningof... [t]he phrase ‘in the courseof” ‘is often’ just a wordy way of saying ‘during or while’”) (quoting People v. Sinohui (2002) 28 Cal.4th 205, 215) (emphasisin original)). In cherry-picking language from this Court’s decision in Sinohui, the County ignores this Court’s holding that “in the course of”is inherently ambiguous, and thus the Court must“look to extrinsic aids for guidance, beginningwith thelegislative history.” 28 Cal.4th at 216. As the discussion leadingup to this holding demonstrates, the plain meaning ofthe phrase “in the course of” “provideslittle guidance” because it can have many meanings. See id. at 215; see also id. at 215-16 (“fojn the other hand, the phrase “in the course of” has also been defined as “in the process of” or “during the progress of’ (emphasis added)). Accord Lantz v. Workers’ Comp. Appeals Board (2014) 226 Cal.App.4th 298, 308 (“[t]he ambiguity in the statutory phrase ‘arising out of and in the course of the employment’ led the California Supreme Court to fashion the ‘going and comingrule’for situations involving an employee injured while traveling to or from work”(citation omitted)). Because “in the course of” can have multiple meanings,it is inherently ambiguous. Second, Section 952 is ambiguousin its explanation that “confidential communication”“includes a legal opinion formed and the advice given by the lawyer...” because it remains unclear whether the legislature intended it to mean “mayinclude”or “must include.” Evid. Code § 952 (emphasis added). None ofthe cases cited by the County in the Answerresolves this ambiguity. A.B.M. at 21-22. In Calvert v. State Bar (1991) 54 Cal.3d 765, the Court merely recited a version ofthe definition of “confidential communications” under Section 952, but did not definitively establish what was intended by “includes.” Jd. at 779. The sameis true for Roberts v. City ofPalmdale (1993) 5 Cal.4th 363, and Fireman’s Fund Ins. Co. v. Superior Court (2011) 196 Cal.App.4th 1263. See A.B.M.at 22 n.5. And the quotation from People v. Bolden (1979) 99 10 Cal.App.3d 375, 379, stating that the phrase “legal opinion” specifies “one type of information protected” by Section 952, does nothing more than demonstrate that a legal opinion is covered by the privilege. Because the AnswerBriefpretends that these ambiguities do not exist, it makes no real effort to explain why the County should winifthe Court concludesthe statutory language ambiguous. But as explained below,the extrinsic aids available to this Court establish that the ACLU’s definition is correct. 2. Section 952’s Legislative History Strongly Supports ACLU’s Interpretation of the Attorney-Client Privilege. As the ACLUexplainsin its Brief on the Merits, Section 952’s legislative history clearly establishes that “cases interpreting the attorney- client privilege prior to 1965 remain relevant andreflective oflegislative intent.” B.O.M.at 29. The County dismissesthe legislative history with little analysis (A.B.M.at 27-28), but it cannot avoid it or the caselaw the Legislature approved with its adoption of Section 952. | Evenifthe issue presented in this case is not specifically addressed in the legislative history or the cases it cites, the inquiry does not end there. Thelegislative history and cases shape the contours of the privilege to makeclearthat the privilege does not extend nearly as far as the County claims. Cases decided before the adoption of Section 952 uniformly held that the privilege does not extend to communications by an attorney when 1] he or she is not acting as an attorney. See MJN001285,citing Fergusonv. Ash (1915) 27 Cal.App. 375, and the “considerable body ofprecedent”that applies this standard; see also B.O.M.at 32-34 & n.7.” For example, in Ong v. Cole (1920) 46 Cal.App. 63, 71-73, the court held that the privilege did not apply where the attorney washired to only draft a title deed. The court explained thatthe client “communicated to [the attorney] nofactfor the purpose ofgetting anylegal advice and he gave her none.” 46 Cal.App. at 73 (emphasis added). Because it did “not appear that any statement was made by[the client] to [the attorney] for the purpose ofgetting any legal advicefrom him,” the communication did “not comewithin the rule of privilege.” Jd. (emphasis added); see also B.O.M.at 32-33; footnote 2, supra, and adjacenttext. Asnotedin an article cited repeatedly in the Committee Report that resulted in the Legislature’s adoption of Section 952 (e.g., MJN001285 n.19), “where the privilege is denied, the function of the attorney appears to be of a mechanical type.” Note, Attorney-Client Privilege in California, 10 Stan. L. Rev. 297, 301 (1957-1958). In other words, beyondthe attorney’s ? Significantly, the court in Ferguson wasClearthat an attorney- client relationship existed in that case. 27 Cal.App.at 377-378. However, the privilege did not extend to the particular communication at issue because the attorney was not acting as an attorney in that circumstance. Jd. at 378. As the court explained, “[i}n such cases the fact that the agent sustains the character of an attorney does not render the communication attendingit privileged ....” Jd. at379. Thus, the Legislature expressly intended to adopt a rule that focuses on context in deciding whetherthe privilege applies to the particular communication at issue. 12 being hired in a business capacity, communicationsthat are not “made for the purpose of seeking or delivering the lawyer’s legal advice or representation” (Costco, 47 Cal.4th at 743 (George, C.J., concurring)), also fall outsideoftheprivilege. The County mentionsthis rule in the Answer (A.B.M.at 27), but does not acknowledgeits impacton the facts of this case. Producing an invoice based on timeentries already submitted by an attorney, and sending that invoiceto a client, are nothing more than mechanical tasks that any non-attorney could perform. There is no evidence here - nor could there be - that the invoices were prepared or transmitted for the purpose of seeking or delivering legal advice or opinion. In the end, the County does nothing more than rotely repeat its claim that everything communicated between lawyerandclientis privileged, without offering any rationale for applying the privilege here. But divorcing the privilege from the policy underlyingit can only lead to abuse - which is exactly what the County asks this Court to allow here. Finally, contrary to the County’s assertion, ACLU doesnot contend that a privileged communication must contain a lawyer’s opinion or advice. See A.B.M. at 28. ACLU agreesthat in the 1967 amendmentofSection 952, the Legislature madeclear that the statute’s reference to “legal opinion”also protects uncommunicated opinions. But this is beside the point. ACLU’s pointis that invoices are not the type of communications 13 that fall within the scope of the privilege because they are generated and exist for a purpose other than seeking ordelivering a legal opinion or advice. See Section 3, infra. 3. An Attorney’s Communications with a Client Are Not Privileged Where They Fall Outside of the Purpose of the Legal Representation. As the County concedes, not every communication between lawyer and client is protected by the attorney-client privilege. A.B.M.at 48-49. Whena lawyeris acting gua lawyer, the intent and purposeofthe communications differ from when the lawyer is engaged in the business aspect of getting paid for services rendered. The County arguesthatthis distinction cannot exist because information about the costoflitigation is so integrated into the purpose underlying the attorney-client relationship thatall such information must be privileged in its entirety. A.B.M.at 24- 26. ACLUdoesnotdeny that information about the cost oflitigation may be privileged under certain circumstances.’ For example, when an attorney is discussing the potential costs associated with different strategies at a case’s inception,those strategic decisions clearly are privileged. However, it does not follow that information about the cost of litigation after services are rendered, in the form of invoices, is necessarily privileged in its entirety > The ACLUalso does not claim thatall “financial information relevantto the representation” is outside of the attorney-client privilege, as the County seemsto claim. A.B.M.at 28. This case involves a very specific kindof financial information - attorney invoices. 14 merely because an attorney sent the invoicesto his or her client in a confidential manner.’ This type of information simply does not advance the legal representation. Indeed, the County did not identify anyfacts in the record to establish that these particular invoicesare privileged - beyond the assertion that the County’s attorneys treat invoices as confidential. See A.B.M.at 21, citing If PE 6:724-727. Thus, it has not offered any evidence to support its claim that these invoices were transmitted in the course ofthe attorney-client relationship. As Chief Justice George emphasized in his concurring opinion in | Costco, 47 Cal.4th at 743, California courts have madeclear that lawyers can act as an attorney representing a client andstill have unprivileged communications with that client. See also casescited in B.O.M.at 32-34 & n.7; A.B.M.at 48-49. Contrary to the County’s claim, the majority and concurring opinionsare consistent - this Court need not choose oneor the other - because the majority did not reach the issue addressed in the concurrence. A.B.M.at 31. Indeed, even though he agreed with the majority on every point, Chief Justice George felt compelled to pen a concurring opinion about the “purpose of the communication” requirement in attorney-client privilege because “the majority emphasizes the purpose of * Whetherornotlitigation is pendingis irrelevantto the scope of the privilege. That issue is addressed, in the CPRA context, in the pending litigation exemption, which is not at issue here. Thus, the fact that the invoices at issue may be from pendinglitigation is a red herring. A.B.M.at 11-12. 15 the relationship between the attorney andthe client.” 47 Cal.4th at 742 (George, C.J., conc.). He explained that while it was “certainly”true that “(t]he privilege does not apply outside the context of such [attorney-client] relationship,” “we should not forget that the purpose ofthe communication also is critical to the application of the privilege.” Jd. (emphasis added). The Court explained in Montebello Rose Co. v. Agric. Labor Relations Bd. (1981) 119 Cal.App.3d 1, 32, that the appropriatetest is whether the dominant purpose ofthe particular communication at issue was to secure or renderlegal service or advice. Jd. There, an employer hired an attorney to engage in bargaining with a union. Jd. at 31. After reviewing communications between the attorney and his employer, the Agriculture Labor Relations Board concluded that certain communications were not related to a request for legal advice because they were madebythe attorney in his “nonlegal capacity as a labor negotiator.” Jd. The Court of Appeal agreed, reasoning that “[s]ince [the employer’s] labor negotiations could have been conducted by a nonattorney,it is self-evident that communications with [the attorney] relating to the conduct of those negotiations were notprivileged unless the dominant purposeofthe particular communication wasto secure or render legal service or advice.” Id.at 32. The statutory requirement that the communication occur “in the course of” the attorney-client relationship has been embeddedin the 16 languageofthe statute for decades. Costco, 47 Cal.4th at 742 (George, C.J., conc.). Thus, the County’s claim that the privilege “protects a transmission irrespective of its content,” is beside the point. A.B.M.at 35, citing Costco, 47 Cal.4th at 739. As the County concedes,this rule only applies “so long as the communication is made in the course of the relationship.” A.B.M. at 35. The County’s bootstrapping does not meetits burden ofproving that the invoices the ACLU seeks were transmitted “in the course of the relationship” under Section 952. In an attempt to avoid this long line of cases, the County mischaracterizes a quote from Costco, claiming that “application of attorney-client privilege depends on ‘the dominant purposeofthe relationships betweenthe [client] and its [attorneys],’ not on the dominant purpose of the communication.” A.B.M.28 (citing Costco, 47 Cal.4th at 739-740). The context of the Court’s discussion makesclear that it does not support the broad interpretation advocated by the County. The Court disapproved 2,022 Ranch v. Superior Court (2003) 113 Cal.App.4th 1377, to the extent it required in camera review ofall communications between an insurance companyandits claims adjusters, who also were attorneys, in order to determineifthe attorneys were acting as attorneys or non-attorneys in their work for the client. Costco, 47 Cal.4th at 739-740. Because courts maynot order disclosure of communications claimedto beprivileged in 17 order to evaluate the privilege claim, this Court held that the lower court erred in compelling such disclosure. Jd.° But the Court did not consider or decide which communications occur “in the course of” an attorney-client relationship - the key issue here. Id. at 740 (“[iJf the trial court determined the communications were made during the course ofan 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” (emphasis added)); see also id. at 743 (George, C.J., conc.) (the Court’s analysis in Roberts, 5 Cal.4th at 371, “was notrestricted to an examination of the purposeofthe attorney-client relationship, but rather considered whether the nature of the communicationitself fell within the boundsofthe statute”). Thus, the Court’s discussion in Costco merelyreiterates its holding in Mitchell v. Superior Court (1984) 37 Cal.3d 591, 600, that the privilege includes facts transmitted between lawyerandclient for the purpose ofprocuring legal advice or an opinion. The County also attacks Chief Justice George’s explanation of the dominant purposetest by arguing that client communicationsare not “similar in nature to ... the lawyer’s legal opinion or advice.” See A.B.M. > The court would not be required to analyze any particular communication here. Rather, this Court is deciding as a matter of law whetherall invoice informationis privileged, as the County claims. It can resolve this issue categorically without examining the invoicesat issue. 18 at 34 (quoting Costco, 47 Cal.4th at 743). But the County again overlooks the context of the discussion. As the concurring opinionstates at the beginning of that same paragraph, the Chief Justice was explaining that the privilege applies to “those communications between the lawyer and the client that are madefor the purpose ofseeking or delivering the lawyer’s legal advice or representation” - andthusplainly applies to the client’s communicationsto his or her lawyer. The client’s communicationsforthis purpose are “similar in nature to ... the lawyer’s legal opinion or advice” because they are madefor the purpose of seeking that opinion or advice. See Mitchell, 37 Cal.3d at 600. The County also attempts to limit the reach of the concurring opinion bycriticizing Chief Justice George’s application ofthe principle ejusdem generis. Again, however, its argumentsare not persuasive. A.B.M.at 32-35. e First, the County claims that ejusdem generis plays no role whenthe Legislature’s intent is clear. Jd. at 33-34. But as the ACLUhasestablished, the languageofthe statute is ambiguous,and the legislative history supports the ACLU’s interpretation. Sections 1, 2, supra. e Second, the County argues that ejusdem generis does not apply because “includes”is a term of enlargement. Jd. at 34. This argumentproves nothing. The ACLUdoesnot argue 19 that the statute extends only to attorney advice and opinion. It agrees that “includes” enlarges the type of information protected by the privilege - to include, for example, facts transmitted for the purpose of seeking an attorney’s advice or opinion. The ACLU’spointis that - as required by ejusdem generis - the information protected must be similar in nature to attorney advice or opinion. The County has no meaningful response to this requirement. Third, applying ejusdem generis to the statute would not eliminate the privilege for communications from client to counsel, as the County claims. Jd. at 34-35. Communications by a client seeking a lawyer’s opinion or advice are similar because they are madefor the purpose of seeking that opinion or advice. The sameis nottrue for invoices. Fourth, the County cites no authority to support its attempt to limit application of ejusdem generis to lists ofmore than two items. California courts have applied this principle to small lists. E.g., People v. Arias (2008) 45 Cal.4th 169, 180 (applying ejusdem generis to limit general term based on statutory enumeration of three items); Huverserian v. Catalina Scuba Luy, Inc. (2010) 184 Cal.App.4th 1462, 1468-1469 (sameas to contractual enumeration oftwo 20 items). And the ACLUhascited clear evidence that the Legislature intended to protect information similar to attorney advice and opinion. See MJN001283, n.2 (fmr. Code Civ. Proc. § 1881 subd. 2); MJN001285. Again, the County’s argumentis empty. 4, Noneof the County’s Arguments Justifies the Broad Interpretation of the Privilege That It Seeks. The Court should reject the laundry list of arguments the County offers in an attemptto justify the broad privilege it asks this Court to adopt. First, the County’s concerns that opponents mightuse invoice information to discoveranticipated strategy (A.B.M.at 25) are purely hypothetical and highly unlikely - as well as irrelevant to the questions presented in this case aboutthe scope ofthe privilege. In most cases involving private parties outside of the CPRA context, current invoices would be irrelevant and not discoverable. In any case in which invoices generated in pending litigation might be relevant and potentially discoverable, the concerns could be managed through the discovery process. Trial courts have been,for years, managing these very issuesat thetrial level with success. Moreover, the County’s speculation is particularly misplaced in this case - the County is a public entity with extensive resources (taxpayer money) to spend on litigation. Los Angeles County is not at risk of going broke over discovery issueslike this. 21 Second, the County’s arguments ignore the fact that the ACLU asks this Court to reject the appellate court’s holding that every attorney invoice is privileged, without regard to content, context or purpose. Indeed, the record reflects that most of the invoices at issue here contain unprivileged information. See B.O.M.at 35-36; III PE 6:726-727 (Granbo declaration); III PE 6:729 (Kim declaration). See also II PE 5:595-III PE 5:684 (samples of fee invoices to County in other matters, with minimal redactions); 5:588- 589 (testimony regarding preparation of invoices, with no suggestion that they were intended to conveylegal advice or opinion). Third, the County also argues that public records advocates do not need invoices, because the same information may be available from other sources. See A.B.M.at 49. It does not identify other public records that might contain the information the ACLU seeks. Does the County believe that the underlying timesheets are not privileged and that they are public records subject to disclosure under the CPRA? The ACLUassumesthat outside counsel would object strenuously if the ACLU submitted a CPRA request to them. Thus, the County’s argumentultimately is meaningless because it does not explain how the public would obtain the informationit needs to oversee this tremendous expenditure ofpublic funds. Fourth, the County also relies on Business & Professions Code § 6149 (“Section 6149”) to argue that a narrow reading ofthe attorney- client privilege would contravenelegislative intent to keep written fee 22 contractsprivileged. See A.B.M.at 23-24. But written fee contracts - typically retainer agreements - may contain a variety ofprivileged information, such as provisions for paymentbythird parties, or agreements : aboutstrategic decisionslikedefault orsettlement. The Legislature’s decision to protect fee agreements does not meanthatit intends to protect every type of information that may be found in such agreements. Indeed, the County’s citation to Section 6149 highlights a significant flaw in its reasoning regarding the scope ofthe attorney-client privilege. If all confidential communications betweenclient and attorney are privileged, as the County contends, then written fee contracts automatically are privileged under Section 952. Thus, there is no reason for the Legislature to single out this particular communication and declare it to be privileged. The County’s interpretation renders Section 6149 meaningless, contrary to well-established law. Bighorn-Desert View Water Agency, 39 Cal.4th at 214. Finally, the County attempts to distinguish County ofLos Angelesv. Superior Court (2012) 211 Cal.App.4th 57 (“Anderson-Barker’’), becauseit turns on a different exemption - pendinglitigation - rather than the attorney-client privilege. A.B.M.at 35-37. But the pendinglitigation exemption is based on the attorney-client privilege. In Anderson-Barker, the court relied on the “dominant purpose”test, as adopted by the court of appealin City ofHemet v. Superior Court (1995) 37 Cal.App.4th 1411, 23 explaining that it “should apply where a document may have been prepared for a dual purpose.” 211 Cal.App.4th at 65. In turn, the City ofHemet court relied on the attorney-client privilege in adopting the dual purpose test. 37 Cal.App.4th at 1418. Thus, Anderson-Barkeralso strongly supports the ACLU’sinterpretation of the attorney-client privilege. 5. Case Law Developedin the Fee Litigation Context Also Demonstrates that Invoices Are Not Privileged. The County dismisses the manycases cited by the ACLU addressing the production or examination of invoicesin the fee-litigation context, althoughit cannot point to any contrary authority. See A.B.M.at 38. As explained in the Brief on the Merits, this Court’s cases for the last four decades have emphasized the importance ofdetailed fee information to support fee awards underthe lodestar method. See B.O.M.at 36-40. And despite the frequency with which courts decide fee motions based on detailed billing records and invoices, there is no published decision holding invoices to be privileged. Moreover, although this Court’s fee motion jurisprudence consistently treats invoice information as unprivileged, the Legislature has never taken steps to extend the privilege to invoices, implicitly approving of the lodestar method,its use of detailed billing information, and the court’s authority to demand invoices. In response to this extensive caselaw and the implicit legislative acceptance of the lodestar method (andthe fee detail necessary to support a 24 fee motion), the County cites a single case - Smith v. LagunaSurVillas Community Assn. (2000) 79 Cal.App.4th 639, 642-643. But in Smith, the court assumed withoutdeciding that the documentsplaintiffs sought - “workproduct and legalbills” - were protected by attorney client privilege. Jd. (emphasis added). The parties apparently did not raise - and the court certainly did not discuss - the question of whetherthe privilege extends to the invoices. Thus, this lone example of a court assuming that invoices and workproductare privileged ultimately proves nothing. The Countyalso attempts to distinguish Hartford Casualty Ins. Co. v. U.R. Marketing (2015) 61 Cal.4th 988 (A.B.M.at 39-40), wherethis Court recently held that an insurer could sue Cumis counsel directly for reimbursement of defense fees and costs pursuant to a court orderthat preserved the insurer’s right to recover “unreasonable and unnecessary” amounts billed by counsel. /d. at 998-1000. In doing so, the Court rejected the suggestion that the invoices may beprivileged in their entirety - and therefore unavailable as evidence - explaining that “[i]f privileged information ... is included in counsel’s billing records,it can be redacted for purposes of assessing whether counsel’s bills are reasonable.” Jd. at 1005-1006. | The County’s effort to distinguish Hartford hingeson its claim that the privilege in the invoices was waived when they were submitted to the insurer for payment. A.B.M.at 39-40. Yet, the law is clear that 25 communications with an insurer do not waive the attorney-client privilege if the insurer has an obligation to defend the insured and“the communication is intended for the information or assistance of the attorney in so defending him.” Travelers Ins. Co. v. Superior Court (1983) 143 Cal.App.3d 436, 449; see also, e.g., Sierra Vista Hospital v. Superior Court (1967) 248 Cal.App.2d 359, 367 (insured’s communicationsto insurer subject to attorney-client privilege). Certainly, invoices sent to the insurance companythatis obligated to pay them easily wouldfall within this rule. Thus, even assuming the invoices were privileged - which the County has not established - that privilege is not waived when they are sent to the insurance company for payment.° The County’s attempt to distinguish Hartford based on this incorrect assumption also must be rejected. Hartfordis justthe latest in a long line of cases recognizing that the attorney-client privilege does not extend to invoice information. ° The County’s suggestion that the client never receiveda bill (A.B.M.at 39) ignores the facts of that case. Litigation began a full year before the insurance company wasorderedto provide a defense to the insured. Hartford, 61 Cal.4th at 993-994. It belies belief to assumethat the client did not receive any ofthe invoices, at least during that period of time. 26 C. The County’s Arguments Ignore the Real-World Application of the Rule It Seeks. 1. Contrary to the County’s Claim, ManyClients Have No Incentive to Support their Lawyer’s Fee Motion. The County claimsthat all clients have incentive to waive the privilege in support oftheir attorney’s fee claim, or they will “face the consequences.” See A.B.M. at 53 (citing Concepcion v. Amscan Holdings, Inc. (2014) 223 Cal.App.4th 1309 (class counsel submitted detailed billing records for. in camera review at the court’s behest)). But this argument demonstrates another flaw in the County’s position - it makes no sense to suggest that the Legislature intended to adopta privilege that routinely would be waivedin litigation, upon the demand ofa court or request of counsel. Moreover, the County’s invocation of “consequences” overlooks the fact that in many cases,clients derivelittle or no financial benefit from a fee motion, and therefore have nolegal or financial incentive to advance an attorney’s case for feés. Manyclients have good causetotake the necessary steps to recover fees perhaps the client is responsible for fees and seeking reimbursement,or the client is pleased with the lawyer’s efforts and wants to ensure that the lawyer is paid well. But that is not alwaysthe case. Otherclients will believe they have goodcauseto refuse to waive the privilege - perhaps becausethe client is unhappy with the 27 attorney at the conclusion of the matter, or simply does not care whether or not the lawyeris paid. For example, under California’s Fair Employment and Housing Act (“FEHA”) (Gov’t Code § 12900 etseq.),attorneys for a plaintiffwho prevails on a FEHAclaim are entitled to an award ofattorney’s fees and costs. Gov’t Code § 12965(b). A prevailing party is defined, in part, as “the party with a net monetary recovery ....” Code Civ. Proc. § 1032(a)(4). Thus, even if a plaintiff wins a minimal amount,the attorney is entitled to all of his or her fees expended in prosecuting the matter. See id.; Taylorv. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1233 (affirming FEHA award of $150,000 to client and $680,520 to attorneys); see also, e.g., Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 164 (rejecting proportionality requirement for fee award in action brought under consumerprotection statute); Harman v. City and County ofSan Francisco (2007) 158 Cal.App.4th 407, 420-421 (in action under 42 U.S.C. § 1988, affirming award of $1.1 million to attorneys, althoughclient recovered only $30,300). It is easy to see how a client might be unhappy with an attorney whofails to recoverall that the client believes due, and loathe to see the attorney recover full fees (which may dwarf the client’s recovery). Whatincentive does an unhappyclient in this situation have to waivethe privilege so his or her attorney can collect? And what possible 28 consequence doesthe client face for refusing to waive the privilege? The answerto both questions is none. Ifa client refused to waive the privilege in the fee motion context, the only consequence would bethat his or her attorney would not haveall of the evidence that might be necessary to support a fee award. The only individual facing any consequences from this decision would be the attorney seeking the fees to which he or sheis entitled. Andthis is not the only circumstance in which inequitable results will flow from a decision to give the client the exclusive right to decide whether invoices are available to support a fee claim. As the ACLU’s Brief on the Merits explained, this Court’s decision in Hartford, 61 Cal.4th 988, is a perfect example of the problems that would arise from such a rule. B.O.M.at 43-44. These problemsare far worse in the CPRA context, whereinvoices often are the only records available to evaluate the tremendous amount ofmoney the government spendsonlegal fees every year. E.g., Il PE 5:351-360. The County’s claim that there is no widespread problem of clients’ refusal to waive the privilege for their attorneys is a red-herring. See A.B.M. at 55. A problem need not be widespreadforit to require a solution. In any event, presumably this has not yet been a problem because California courts have had the freedom to reject privilege claims asserted in an attempt topreventthe disclosure of attorney invoices that are needed to 29 resolve a dispute - as this Court did in Hartford, 61 Cal.4th at 1005-1006. If, however, this Court agreed with the County and removedthatoption,it is impossible to know how long it would take California courts to work their way through the problemsthat would flow outofthat decision, and how much ink would bespilled in the process. Norare the County’s arguments bolstered by federal cases involving fee disputes. A.B.M.at 55, citing Evans v. JeffD. (1986) 475 U.S. 717, and related cases. All of those decisions are based on a federal statute allowing clients to waive, settle, or negotiate attorney’s fees - which is very different from California law. This rule has created a numberofconflicts between clients and attorneys wheretheir interests diverge, as demonstrated by the cases the County cites. A.B.M. at 55. Thus, these cases bolster the ACLU’sposition, by providing a cautionary example of the harms that may flow out of a decision to give the client such broad control overthe fee recovery that in California belongs to the attorney. They certainly do not allay the problemsthat will face attorneys practicing in federal court if they havean ethical obligation to treat invoices as confidential. Finally, the County dismisses the ethical conflict for lawyers practicing in federal court, claiming that retainer agreementsare treated differently under federal and state law, which the County believes demonstrates that no ethical conflict would arise in this case. But the County misconstrues the authority it cites. A.B.M. at 58-59, citing Hoot 30 Winc, LLC v. RSMMcGladrey Fin. Process Outsourcing, LLC (S.D. Cal. Nov.16, 2009) 2009 WL 3857425, at *2; Ralls v. United States (9th Cir. 1995) 52 F.3d 223, 225; United States v. Blackman (9th Cir. 1995) 72 F.3d 1418, 1424. In Hoot Winc, the court concludedthat “retainer agreements are not protected,” butit cited cases regarding fee arrangements and the identity ofthe fee payer - which indisputably contain less information than retainer agreements. Thus, these cases are not examplesofa conflict between federal and state law, as the County claims. Nor do Agster v. Maricopa County (9th Cir. 2005) 422 F.3d 836, or - Wilcoxv. Arpaio (9th Cir. 2014) 753 F.3d 872 support the County’s claim. A.B.M.at 59. Those cases involve the peer review and mediation privileges - not, as here, an independent obligation imposedon the attorney by state law, under potential penalty of disciplinary proceedings. In the end, the County cannot explain how federal practitioners will resolve the conflict between an obligation to submit invoices to support a fee motion, anda client’s refusal to waive the privilege in those invoices. 2. Invoices May Not Be Required in All Cases in Which Fees Are Sought, but Many Fee Disputes Cannot Be Fairly Resolved Without Them. Noneofthe County’s arguments supportsits insistence that invoices are extraneous and unnecessary in fee litigation. First, the County suggests that the ACLU’s position is inconsistent, because it recognizes that invoices are not strictly required to support a fee award, but also points out that in 31 many instances a fee motion cannot be adjudicated without that level of detail. A.B.M. at 52-57. It claims that ACLU “confuses the methodology for calculating fees with the evidence necessary for recovering fees” when discussing the need for invoices to support a fee motion. A.B.M.at 56-57 (emphasis in original). But this Court has established a high standard to support fee awards underthe lodestar method. E.g., Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140 (upholding lowercourt’s calculation ofthe fee award where “[t]he lodestar was based on detailed documentation by counsel and there wasextensivelitigation concerning the time spent and the prevailing hourly rate in the area for comparable services”), ACLUdoesnot contendthat a detailed invoice is required to calculate the appropriate lodestar in every case. In somecasesa trial court can fairly evaluate a fee request based on the general evidence an attorney may provide in a declaration. E.g., Sommers v. Erb (1992) 2 Cal.App.4th 1644, 1651-52 (finding attorney’s declaration sufficient to support small fee award where counsel estimated 130-150 hours spent on the case, outlined various tasks and procedures performed during that limited period, and declared his hourly rate). But that is not always the case. See, e.g., Bell v. Vista Unified Sch. Dist. (2000) 82 Cal.App.4th 672, 689 (holding that block billing records were insufficient to support fee motion where “it [was] virtually impossible to break down hours on a task-by-task basis between those related to the Brown Act [for which attorney’s fees could be awarded] 32 and those that [were] not”). Often,a trial court will need detailed information to meet the requirements this Court has established to justify a fee award. Until now,trial courts have had the freedom to demand more detailed information, including invoices, to evaluate a fee request - which is particularly appropriate in large, complicated cases, or in cases in which a fee must be apportioned. But a decision in the County’s favor would apply to all invoices - and all fee motions - removing the discretiontrial courts currently have to demand the evidence they consider necessary to support the fee motion they are asked to decide. Second, the County also ignores the fact that attorney invoices commonly are presented to California courts as evidence of fees, and the courts are well equipped to deal with any possible attorney-client privilege issues. See, e.g., Hartford, 61 Cal.4th at 1005 (“[t]rial courts are accustomed to dealing with claims of attorney-client privilege in a manner that balances the competing interests of the parties, and can thus presumably address anyprivilege issues that arise on a case-by-case basis”); see also B.O.M.at 38-39 (detailed analysis of Hartford). Thus, the County’s concerns aboutdisclosing information that mayreflect strategy or be privileged in some way,are easily resolved. Third, the County also misconstrues ACLU’s argument regarding involuntary waiver where invoices are submitted to support fee claims. See A.B.M.at 54. As explained in the ACLU’sBrief on the Merits, the 33 attorney-client privilege is waived only if “the client has put the otherwise privileged communication directly at issue and that disclosure is essential for a fair adjudication of the action.” Southern Cal. Gas Co. v. Public Util. Com. (1990) 50 Cal.3d 31, 37. In those cases, the attorney-client communication wasthe sole evidence available to support the defense raised by the client, and thus they fell within the narrow scope of cases finding involuntary waiver. But given cases holding that invoices are not strictly necessary,it currently is unclear whatcourts will conclude on this issue, if they are forced to decide if they can compel disclosure of invoices. Fourth, in arguing that “information”is not privileged (A.B.M.at 57), the County overlooks the manycasesthat find waiver where a substantial part of the communication is disclosed. See B.O.M.at 46. Thus, an attorney who supports a fee request with the underlying timesheets risks a finding of waiveras to the invoicesif the timesheets were largely duplicative of the invoices. The rule advocated by the County would imposea heavy burden on trial courts trying to balance the obligation for sufficient support ofmotions with the intricacies of the attorney-client privilege. Such a rule would only create anotherissue to belitigated in the many fee disputes that arise in California courts, and lead to inconsistent results as courts reach different conclusions on these complicated issues. 34 Ill. CONCLUSION The attorney-client privilege is a powerful weapon. Whenit applies, it prevails over all attempts to discover or obtain the privileged information. Butit is for this reason that this Court must ensure that the privilege does not reach beyond the Legislature’s intent. The County’s interpretation would rend the privilege from the policy underlying it, expanding its scope to reach information and documents that indisputably were not transmitted for the purpose of seeking or delivering legal advice or opinion. And it would beflatly contrary to the mandate of Article I, Section 3(b) to narrowly construe statutes that restrict the public’s right of access. The public is entitled to oversee the County’s annual expenditure of tens of millions of dollars defending against detainee abuse and neglect cases. The County should not be allowed to deny the public the recordsit needsto do that. 35 Forthe reasonsset forth above and in the ACLU’s Brief on the Merits, the ACLUrespectfully requests that the Court reverse the Court of Appeal’s Opinion in this matter, and direct that Court to affirm the trial court’s decision. Respectfully submitted this 13th day of January, 2016. DWT28624317v4 0200646-000001 ACLU FOUNDATION OF SOUTHERN CALIFORNIA Peter J. Eliasberg DAVIS WRIGHT TREMAINE LLP Jennifer L. Brockett Rochelle L. Wilcox Colin D. Wells Diana Palacios KedhdéGla, Rochelle L. Wilcox Attorneys for Real Parties in Interest ACLU OF SOUTHERN CALIFORNIAand ERIC PREVEN 36 COMPLIANCECERTIFICATE I certify that pursuant to CA Rule of Court 8.520(c)(1), the attached “Reply Brief On The Merits OfReal Parties In Interest ACLU Of Southern California And Eric Preven”is proportionately spaced, has a typeface of 13 points, and according to the word processing systemsused to prepare this Reply Brief contains 8,395 words, including footnotes, but excluding the caption, tables, this certificate, and signature blocks. Dated: January 13, 2016 DAVIS WRIGHT TREMAINE LLP Colin D. Wells PROOF OF SERVICE I, Bradley Redmond, declare under penalty ofperjury under the laws of the State of California that the followingis true and correct: I am employed in the City and County of San Francisco, State of California. I am over the age of 18 and not a party to the within action. My business address is Davis Wright Tremaine LLP, 505 Montgomery Street, Suite 800, San Francisco, California 94111-6533. On January 13, 2016, I served the foregoing documentdescribed as: REPLY BRIEF ON THE MERITSOF REAL PARTIES IN INTEREST ACLU OF SOUTHERN CALIFORNIA AND ERIC PREVEN on the interested parties in this action as stated below: Timothy T. Coates, Esq. Barbara W.Ravitz, Esq. GREINES, MARTIN, STEIN & RICHLAND, LLP 5900 Wilshire Blvd., 12" Floor Los Angeles, CA 90036 Mary C. Wickham,Esq. County Counsel Roger H. Granbo,Esq. Asst. County Counsel Jonathan McCaverty, Esq. Dep. County Counsel 648 Kenneth Hahn Hall of Administration 500 West Temple Street Los Angeles, CA 90012-2713 . Phone: PROOFOF SERVICE DWT28502215v1 0200646-000001 tcoates@gmsr.com bravitz/@gmsr.com Phone: (310) 859-7811 Fax: (310) 276-5261 Attorneys for Petitioners COUNTY OF LOS ANGELES BOARD OF SUPERVISORSand THE OFFICE OF COUNTY COUNSEL jmccaverty@counsel.lacounty.gov (213) 974-1828 Fax: (213) 626-2105 Attorneysfor Petitioners COUNTY OF LOS ANGELES BOARD OF SUPERVISORSand THE OFFICE OF COUNTY COUNSEL DAVIS WRIGHT TREMAINE LLP Hon. Carolyn B. Kuhl Presiding Judge Los Angeles Superior Court 111 North Hill Street Los Angeles, CA 90012 Clerk of the Court Court ofAppeal of the State of California Second Appellate District Ronald ReaganState Building 300 S. Spring Street 2nd Floor, North Tower Los Angeles, CA 90013 Frederick R. Bennett III, Esq. Court Counsel Los Angeles Superior Court ACLUofSouthern California, et al. v. County ofLos Angeles, et al. Case No. BS145753, Superior Court of California, County of Los Angeles County ofLos Angeles Board of Supervisors, et al. v. Superior Court ofThe Los Angeles County, Respondent andACLU ofSouthern California, Real Parties in Interest Case No. 2d Civ. No. B257230, Court ofAppealofthe State of California, 2" Appellate Dist., Div. 3 ACLUofSouthern California,et al. v. County ofLos Angeles, et al. Case No. BS145753, Superior Court 111 North Hill Street, Room 546 __ ofCalifornia, County ofLos Angeles Los Angeles, CA 90012 [x] (BY MAIL)Byplacing a true copyofthe foregoing document(s) in a sealed envelope addressedas set forth above. I placed each such envelope for collection and mailing following ordinary business practices. I am readily familiar with this Firm’s practice for collection and processing of correspondencefor mailing. Underthat practice, the correspondence would be deposited with the United States Postal Service on that same day, with postage thereon fully prepaid at San Francisco, California, in the ordinary course of business. I am aware that on motion ofthe party served, service is presumedinvalid if postal cancellation date or postage meter date is more than one dayafter date of deposit for mailing in affidavit. Executed on January 13, 2016 at San Francisco, California. I declare under penalty ofperjury, under the laws ofthe State of California, that the foregoingis true andcorrect. Bradley Redmond Print Name PROOF OF SERVICE DWT28502215v1 0200646-000001
