Filed 8/24/26 San Diego Unified Port Dist. v. Superior Court CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SAN DIEGO UNIFIED PORT D087218 DISTRICT,
Petitioner, (San Diego County
v. Super. Ct. No. 37-2024-00010750-
CU-MC-CTL)
THE SUPERIOR COURT OF SAN DIEGO COUNTY,
Respondent;
ARTURO CASTAÑARES,
Real Party in Interest.
ORIGINAL PROCEEDING on a petition for writ of mandate after the superior court ordered disclosure of purportedly attorney-client privileged documents. Joel R. Wohlfeil, Judge. Petition granted.
San Diego Unified Port District Office of the General Counsel, Thomas A. Russell and Simon Kann; Kronick, Moskovitz, Tiedemann & Girard, Mona G. Ebrahimi and William T. Chisum for Petitioner.
Womble Bond Dickinson and Mark L. Tuft for The Association of Workplace Investigators, Inc.; California Special Districts Association; The League of California Cities; The California State Association of Counties; Oppenheimer Investigations Group; PRISM; and Van Dermyden Makus Law Corporation as Amicus Curiae on behalf of Petitioner.
Briggs Law Corporation and Cory J. Briggs for Real Party in Interest. No appearance for Respondent. Journalist Arturo Castañares sought certain records from the San Diego Unified Port District under the California Public Records Act (Gov. Code, § 7920.000 et seq.). The District refused to produce the records, claiming, among other protections, the documents—a Confidential Memo and a Confidential Summary Report—were attorney-client privileged. Castañares sued to compel disclosure of the responsive materials. Everyone agrees the Confidential Memo and Confidential Summary Report are privileged. But the trial court, after ordering the District to identify any attachments to the documents in an amended privilege log, ultimately compelled the District to produce certain attachments to those privileged documents.
We conclude this was error. Because the identity of the attachments to a privileged communication can reveal privileged information, the trial court erred in requiring the District to identify the attachments in its amended
privilege logs.1 Accordingly, the court also erred in directing the District to produce any of the attachments. We therefore grant the District’s petition.
1 As the parties did not rely on or brief Evidence Code section 919, we instead address the arguments they did raise.
3
We emphasize the privilege in this case is contextual. The standalone attachments are not as a result imbued with privilege in all contexts and may be discoverable by other means in other contexts.
I.
In 2023, the District placed its CEO, Joe Stuyvesant, on administrative leave. He later resigned.
In February 2024, under the CPRA, Castañares sought copies of “any and all investigations, inquiries, and other reports concerning complaints against or otherwise pertaining to the job performance of [Stuyvesant] conducted since January 1, 2023.” The District claimed any responsive records were exempt from disclosure under the CPRA’s personnel, privilege, and catch-all exemptions. Castañares filed the instant lawsuit seeking to compel disclosure of the responsive records.
In opposition, the District filed a declaration from Simon Kann, an assistant general counsel, with a privilege log disclosing two responsive records. They were a “Confidential memorandum from outside counsel providing advice and analysis regarding personnel investigation” and a “Confidential summary report” with the same description, each sent from Elizabeth Dunn to Ellen Gross, described as “the [District]’s counsel.” A subsequent declaration from Dunn makes clear she also hand-delivered hard copies of both documents to her client, the District. The District separately retained Dunn and Gross as outside counsel “for the purpose of providing legal services and advice related to the investigation.” The District withheld these two records under attorney-client privilege, attorney work product, and the CPRA personnel and catch-all exemptions.
On June 9, 2025, the trial court tentatively ruled the records were privileged. At the initial bench trial date on June 12, the District declined to
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make the documents available for in camera review, a position it has maintained. The court took the matter under submission.
On June 17, the trial court entered an order finding the privilege log “insufficient” and requiring the District to provide an amended log that “describe[d], with specificity, each document which the Confidential memorandum and Confidential summary report consists of,” including “each attachment or exhibit, if any,” before it made a “final decision.”
The District filed a mandate petition, arguing the attachments were attorney-client privileged and protected by the work-product doctrine and the privilege extended to a privilege log. We denied the petition.
In July, the District filed its amended privilege log. The Confidential Memo had no attachments, and the Confidential Summary Report had 103. An introductory section of the log stated each document was protected from disclosure by attorney client privilege, work product, and the personnel exemption “by virtue of . . . inclusion by outside counsel.”
Attachments number 1 through 78 were “documents selected” by Dunn and had general descriptions like “[District] Board Policy.” A column listed specific withholding grounds. Only some attachments were marked as attorney-client privileged and attorney work product. Other grounds included personnel records, “[n]ot responsive” (i.e., pre-2023 documents), and Government Code sections 54963 (closed session; labor negotiations) and 7923.600 (security).
Attachments number 79 through 103 were summaries of interviews of unidentified witnesses conducted by Dunn, which the District contended “would disclose [Dunn]’s thoughts and impressions.”
The District also provided declarations. Dunn said she incorporated the documents and interview summaries into the Confidential Summary
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Report to “explain and support [her] legal analysis and the strategy.” Kann said the “records identified in the [amended privilege log] contain the entirety of the records that are responsive to the Request.”
The court held a continued trial day on September 11. It concluded the District had made a prima facie showing of attorney-client privilege and Dunn’s absolute work product was protected, but it “question[ed] whether statement[s] of fact[] communicated during the interviews by the persons interviewed by Ms. Dunn are protected by either the privilege or the doctrine.” To the extent the materials were “protected [as] qualified work product,” however, the court “err[ed], if at all, on the side of directing the production of those materials because of the public policy” behind the CPRA.
The court ruled the District had to produce attachments number 1 through 15, 22 through 25, 27 through 36, 39 through 66, 68 through 73, and 75 through 78. The listed attachments were those without individual attorney-client privilege or attorney work product designations. Thirty of the sixty-seven attachments ordered produced predated 2023 or were undated. The court also ordered the District to “augment” its amended privilege log “to include the name of each interviewee whose interview is referenced in items 79-103 of the [amended privilege log], the date of each such interview, and the name of any and all persons other than the interviewee who was present.”
On October 1, the District filed its second amended privilege log, which showed the Stuyvesant interview summary was attachment number 88 and no third parties were present during his interview.
On October 23, the trial court held the final trial day. It first addressed Dunn’s summary of her interview with Stuyvesant. Because Stuyvesant was placed on leave in July 2023—before Dunn’s August 2023 interview—the
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court “d[id] not consider there to have been an attorney-client relationship” between Dunn and Stuyvesant during the interview. The court did not address whether the interview summary was protected by the attorney-client privilege as between Dunn and the District. The court considered the work product claim “nuanced,” as Dunn’s interview summary “may in part . . . be absolutely protected,” but stated it would “be surprised if it doesn’t, in part, reflect upon information that was provided by [Stuyvesant], which is protected, if at all, by a qualified privilege.” The court then expressed its view of the CPRA as “the tiebreaker” because it “puts a tremendous weight on public transparency. If this were two private litigants, I think we might be talking about a different conclusion. But if . . . there’s . . . qualified [work product], I would be inclined to direct that the [work product doctrine,] in balancing, would yield to the public’s right to the information.” The court accordingly ruled the District’s counsel had to “redact all information” reflecting “Dunn’s impressions that are protected by the absolute work product doctrine” and to produce the redacted summary.
On the allegedly nonresponsive attachments, Castañares’ counsel argued “[t]hey’re within the scope of the request because they’re attached to the very investigation that is the subject of the request.” The trial court noted Kann’s declaration that the identified documents “ ‘constitute the entirety of the records responsive to [the] CPRA request’ ” and concluded “So[,] though probably not within the scope, . . . Kann injected it within the scope.” The District’s counsel then asked if the court was “making a ruling on the independent exemptions,” citing the attachments previously ordered disclosed. The court responded, “I’m confirming the ruling. . . . Whether it be objections or exemptions, the Court is overruling the [District]’s position as to those materials only.”
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On November 12, the court issued a written order requiring production of the previously identified attachments and the redacted Stuyvesant interview summary.
The District filed the instant petition, seeking an immediate stay and to vacate the order. After issuing a temporary stay and requesting an informal response, we summarily denied the petition.
The District then filed a petition for review in the Supreme Court. The high court granted the petition and transferred the matter back to us “with directions to vacate [our] order denying mandate and to issue an order directing respondent superior court to show cause why the relief sought in the petition should not be granted.” The Supreme Court stayed the trial court’s order “pending further order of” this court. We issued the show-cause order and sought supplemental briefing from the parties on certain issues pertaining to the attorney-client privilege.
II. A.
The CPRA requires government records to be “open to inspection”
“except as otherwise provided.” (Gov. Code, § 7922.525, subd. (a).) Materials exempt from disclosure under the CPRA include “records protected by the attorney-client privilege or attorney work product doctrine.” (League of California Cities v. Superior Court (2015) 241 Cal.App.4th 976, 986 (League of California Cities); accord § 7927.705.) The CPRA’s “exemptions are narrowly construed,” and the “agency opposing disclosure bears the burden of proving an exemption applies.” (Becerra v. Superior Court (2020) 44 Cal.App.5th 897, 914.) “[D]oubtful cases must always be resolved in favor of disclosure.” (Essick v. County of Sonoma (2022) 81 Cal.App.5th 941, 950.) The agency must disclose any “reasonably segregable portion of a record . . .
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after deletion of the portions that are exempted by law.” (§ 7922.525, subd. (b).) But “public agencies are not required to attempt selective disclosure of records that are not ‘reasonably segregable.’ ” (Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 292 (Los Angeles County Bd. of Supervisors).)
An order directing disclosure under the CPRA is reviewable only by writ petition. (§ 7923.500.) We “independently review the trial court’s rulings on questions arising under the [CPRA] and will uphold the trial court’s factual determinations if supported by substantial evidence.” (League of California Cities, supra, 241 Cal.App.4th at p. 987.)
B.
The District argues the court erred in compelling disclosure of certain documents attached to the Confidential Summary Report because the attorney-client privilege applies to all attachments and exhibits to an attorney-client privileged communication. Because “attachments to a privileged communication are themselves a communicative act in furtherance of the attorney-client relationship,” the District claims “[d]isclosure of that information necessarily reveals the nature of the communication that was shared between the attorney and the client and is therefore a violation of the underlying privilege.”
Castañares concedes the Confidential Memo and Confidential Summary Report are privileged. But he counters that preexisting documents attached to the Confidential Summary Report are not privileged given they existed prior to and independently of the District’s investigation. His briefing does not directly address why the Stuyvesant interview summary is not privileged, presumably due to the trial court’s focus on the attorney work product doctrine.
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As we discuss below, the privilege attaches to the entirety of the Confidential Summary Report because the “fact of transmission . . . merits protection.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 741 (Costco).) Therefore, the court erred in its June 17, 2025 order requiring the District to amend its log to identify each attachment to the Confidential Summary Report. From this error, it necessarily follows that the November 12 order, directing the disclosure of some of those specified attachments, was error as well. Such documents should not be produced under the November 12 order, although we note they “might be discoverable by some other means.” (Costco, at p. 740.)
1.
A client “has a privilege to refuse to disclose . . . a confidential communication between client and lawyer.” (Evid. Code, § 954.) A “ ‘confidential communication between client and lawyer’ means information transmitted between a client and [the client’s] 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 . . . , and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.” (Evid. Code, § 952.)
“The party claiming the privilege has the burden of establishing the[se]
preliminary facts.” (Costco, supra, 47 Cal.4th at p. 733.) If it does so, “the communication is presumed to have been made in confidence and the opponent of the 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.” (Ibid.) “[T]he relevant inquiry is not the content of the communication but is instead the relationship of the communicators.” (Clark v. Superior Court (2011) 196 Cal.App.4th 37, 52.) The court “may not require
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disclosure of information claimed to be privileged . . . in order to rule on the claim of privilege.” (Evid. Code, § 915.) “If the trial court determine[s] 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.” (Costco, at p. 740.)
“[T]he fundamental purpose behind the privilege is to safeguard the confidential relationship between clients and their attorneys so as to promote full and open discussion of the facts and tactics surrounding individual legal matters.” (Mitchell v. Superior Court (1984) 37 Cal.3d 591, 599.) “Nevertheless, the privilege is strictly construed because it suppresses relevant facts which may be necessary for a just decision.” (National Steel Products Co. v. Superior Court (1985) 164 Cal.App.3d 476, 483 (National Steel Products Co.).)
2.
The court erred in ordering disclosure of certain attachments to the attorney-client privileged Confidential Summary Report. On the record before us, the documents were exempt from disclosure in this context because revealing their identity risked disclosing attorney-client privileged information. That does not mean, however, that the standalone documents comprising the attachments are individually privileged, and therefore exempt from disclosure, in other contexts.
We agree with the District that it made a prima facie showing of an attorney-client relationship by submitting evidence that it hired outside counsel for the purpose of providing legal advice regarding its investigation of Stuyvesant. Dunn attested that the documents in question were transmitted in confidence during the course of that relationship. She also attested that
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she identified and incorporated attachments number 1 through 78 “based upon [her] mental impressions and legal opinions to explain and support [her] legal analysis and the strategy [she] developed to conduct the investigation as contained within the [Confidential] Summary Report.” She prepared the “[a]ttorney notes and summar[ies] of oral interview[s]” and incorporated them into the Confidential Summary Report as attachments number 79 through 103 “to help explain and support [her] legal analysis and strategy.” She described these attachments as “key components of [her] [Confidential] Summary Report regardless of whether they were prepared prior to or contemporaneously with [her] [Confidential] Summary Report.” In sum, “[t]he Confidential Memorandum and [Confidential] Summary Report, including the attachments, reflect the results of [her] investigation and legal advice and conclusions provided to the [District] and also [her] own impressions, conclusions[,] and legal research.”
This substantial evidence supports the trial court’s factual finding that an attorney-client relationship existed between the District and its investigating attorney, Dunn. (Shen v. Miller (2012) 212 Cal.App.4th 48, 57.) Accordingly, the burden shifted to Castañares to show the privilege is inapplicable. (League of California Cities, supra, 241 Cal.App.4th at p. 989.)
Castañares failed to carry this burden. He claims the burden never shifted to him “because the CPRA expressly requires the District to prove that the privilege renders each attached ‘record in question’ exempt.” (Quoting Gov. Code, § 7922.000.) He also points to Proposition 59, adopted in 2004, to argue that the privilege should be narrowly construed to minimize the extent to which it limits the public’s right of access. But Castañares has not convinced us that the way this privilege is proven as to records subject to disclosure under the CPRA is any different from the way it is proven more
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generally. The attorney-client privilege is already “strictly construed.” (National Steel Products Co., supra, 164 Cal.App.3d at p. 483.) And as Castañares recognizes, “ ‘[t]he privileges set out in the Evidence Code are legislative creations; the courts of this state have no power to expand them or to recognize implied exceptions.’ ” (Quoting Wells Fargo Bank v. Superior Court (2000) 22 Cal.4th 201, 206; bolding and italics omitted and added.) The CPRA does not purport to abrogate the usual evidentiary rules governing the attorney-client privilege. Thus, when the District established the privilege presumptively applied, Castañares had to prove otherwise.
Castañares did not do so. He claims the amended privilege log proves the attachments ordered produced were not privileged because the District does not assert the privilege as to those documents. The trial court should not have ordered the District to produce an amended privilege log identifying any attachments to the Confidential Memo and Confidential Summary Report in the first place, so this information should never have been made available to Castañares. But, even on the merits, this argument ignores the introductory section of the privilege log, in which the District asserts the privilege as to every attachment “by virtue of its inclusion by outside counsel in the exempt [Confidential] Summary Report.” Castañares further argues documents preexisting the hiring of outside counsel “cannot have been attorney-client creations that are subject to any privilege.” Yet the privilege protects attorney-client communications, not attorney-client creations. The only authority on which Castañares relies to claim that the privilege cannot apply to a preexisting document, Los Angeles County Bd. of Supervisors, is inapt, as we later explain.
Finally, Castañares relies on the District’s verified special interrogatory responses, in which it states “ ‘some of the requested personnel
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records are also protected under the attorney-client and work-product privileges,’ ” as an admission that not all the records are privileged. (Italics and bolding omitted.) But as the District noted in its preliminary statement to those very responses, it had not yet completed discovery and trial preparation, which could “provide the basis for new factual conclusions and legal contentions, all of which may lead to substantial additions to, changes in, and variations from the contentions set forth below.” The District later amended its interrogatory responses to assert this privilege as to all requested documents. The court overruled Castañares’ objections to the amended interrogatory responses. Because Castañares fails to point to competent record evidence proving the attachments were not privileged, we conclude the District carried its burden to prove they were privileged. Accordingly, the court erred in ordering disclosure.
Citing Costco, Los Angeles County Bd. of Supervisors, and Travelers Ins. Companies v. Superior Court (1983) 143 Cal.App.3d 436, Castañares claims the documents preexisting the investigation are “not subject to the privilege” because “the dominant purpose of . . . those attachments was something other than transmission of information to the investigator.” Yet this argument is a nonstarter, as the documents in question were not being transmitted to the investigator as part of a data dump from her client but rather from the investigator to both her fellow outside counsel and the District in relation to the legal analysis she was hired to perform.
In Los Angeles County Bd. of Supervisors, our high court addressed the extent to which an attorney’s billing invoices may be exempt from disclosure under the CPRA due to the attorney-client privilege. (Los Angeles County Bd. of Supervisors, supra, 2 Cal.5th at p. 288.) The party seeking disclosure argued that attorney invoices are not privileged because they “further a
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separate business purpose”—to “secure payment for services rendered”— “that is merely incidental to the attorney-client relationship.” (Id. at p. 293.) The high court “agree[d]—but only up to a point.” (Ibid.) It noted “the heartland of the privilege protects those communications that bear some relationship to the attorney’s provision of legal consultation,” so the privilege “only protects communications between attorney and client made for the purpose of seeking or delivering the attorney’s legal advice or representation.” (Ibid.)
Our Supreme Court explained that whether the attorney-client privilege applies depends on “the link between the content of the communication and the types of communication that the attorney-client privilege was designed to keep confidential.” (Los Angeles County Bd. of Supervisors, supra, 2 Cal.5th at pp. 295, 297.) “[T]he privilege turns on whether [the information] reveal[s] anything about legal consultation.” (Id. at p. 298.) As a result, “the information contained within certain invoices may be within the scope of the privilege.” (Id. at p. 297.) “And even if the information is more general, such as aggregate figures describing the total amount spent on continuing litigation during a given quarter or year, it may come close enough to this heartland to threaten the confidentiality of information directly relevant to the attorney’s distinctive professional role.” (Ibid.) On the other hand, “[a]sking an agency to disclose the cumulative amount it spent on long-concluded litigation—with no ongoing litigation to shed light on the context from which such records are arising—may communicate little or nothing about the substance of legal consultation.” (Id. at p. 298.)
If information contained within certain billing records can convey privileged information about strategy and the substance of the legal
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consultation, the substantive documents an attorney elects to incorporate as part of a privileged communication providing legal analysis of an investigation are entitled to at least the same level of protection. That the information may be nonprivileged and discoverable in other contexts does not mean it is unprotected within the context of an attorney-client communication. (Costco, supra, 47 Cal.4th at p. 740.) For example, Castañares could submit CPRA requests seeking District policies and procedures, which may be subject to disclosure in that context, divorced from the transmittal of the privileged Confidential Summary Report. Here, however, even the identity of the particular policies attached to the Confidential Summary Report may reveal significant information about the investigating attorney’s focus and her strategy in approaching the investigation; the court therefore erred in ordering the District to provide a more particularized privilege log identifying the individual attachments. Those attachments are fully protected from disclosure in this context.
CBS, Inc. v. Block (1986) 42 Cal.3d 646, 653, on which Castañares relies for the principle that “[t]he fact that parts of a requested document fall within the terms of an exemption does not justify withholding the entire document,” is an inapt comparison because it did not deal with the attorney- client privilege but rather the CPRA’s catch-all exemption. There may be instances—as with the Los Angeles County Bd. of Supervisors’ invoices—in which redacting privileged information will adequately protect the attorney- client relationship. But such is not the case here, where the very identity, much less the content, of the documents subject to disclosure may reveal privileged information about the investigation. In this context, redaction is not an option. As previously noted, “public agencies are not required to
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attempt selective disclosure of records that are not ‘reasonably segregable.’ ” (Los Angeles County Bd. of Supervisors, supra, 2 Cal.5th at p. 292.)
That the District has previously disclosed “confidential investigations and the attachments thereto when high-level officials are involved” has no bearing on whether the District can be compelled to produce documents it has claimed and established are subject to the attorney-client privilege in this matter. Castañares neither asserts nor proves any waiver of the attorney- client privilege here based on the District’s prior voluntary disclosure of unrelated investigation results.
Finally, Castañares cites Laguna Beach County Water Dist. v. Superior Court (2004) 124 Cal.App.4th 1453, 1458, for the proposition that “ ‘[d]ocuments that are not originally protected do not become so merely by being provided to or transmitted by an attorney.’ ” But the mere fact of transmittal from the District’s attorney to the District is not the basis for the privilege here. Instead, any attachments to the Confidential Summary Report are privileged because their identity and contents would reveal privileged information about the investigation, and the court cannot require disclosure of the documents to make an independent assessment of whether that is so. Thus, to effectuate the purpose of the attorney-client privilege, the entirety of the privileged Confidential Summary Report, including the existence and identity of any attachments included with it, is privileged in this context. This does not mean that all attachments are independently privileged as standalone documents in perpetuity. They may be discoverable in contexts divorced from the attorney-client privileged Confidential Summary Report.
In sum, the District has shown it is entitled to writ relief. The District made a prima facie showing the entire Confidential Summary Report is
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protected by the attorney-client privilege, and Castañares failed to rebut that showing. The trial court accordingly erred in ordering the District to (1) identify any attachments to the Confidential Summary Report and (2) produce any of those attachments. Because we conclude the documents were exempt from disclosure due to the attorney-client privilege in this context, we do not need to address alternative bases for their withholding.
III.
Let a peremptory writ of mandate issue directing the superior court to (1) set aside and vacate its order of November 12, 2025 granting Castañares’ request to compel production of documents and (2) conduct further proceedings consistent with this opinion. San Diego Unified Port District is entitled to recover its costs in this proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(A).)
CASTILLO, J.
I CONCUR:
KELETY, J.
Do, J., Concurring.
I agree the San Diego Unified Port District (District) is entitled to relief on its petition for extraordinary writ and we must vacate the trial court’s order requiring production of allegedly privileged attorney-client and work product documents. I write separately because, in my view, the result is compelled by Evidence Code section 919, a matter fairly encompassed within the scope of the issues proposed and briefed by the parties. (Gov. Code,
§ 68081.)1 I.
Evidence Code section 919 provides that “[e]vidence of a statement or other disclosure of privileged information is inadmissible against a holder of the privilege” if “[a] person authorized to claim the privilege claimed it but nevertheless disclosure erroneously was required to be made.” (§ 919, subd. (a)(1), italics added.) And “[i]f a person authorized to claim the privilege claimed it, whether in the same or a prior proceeding, but nevertheless disclosure erroneously was required by the presiding officer to be made, neither the failure to refuse to disclose nor the failure to seek review of the order of the presiding officer requiring disclosure indicates consent to the disclosure or constitutes a waiver and, under these circumstances, the disclosure is one made under coercion.” (§ 919, subd. (b), italics added.) “The protection afforded by [s]ection 919 . . . applies where a claim of privilege is made at an earlier stage in the same proceeding and the presiding officer erroneously overruled the claim and ordered disclosure of
1 Additionally, as the majority notes, our review of the trial court’s rulings on questions arising under the California Public Records Act (CPRA) is de novo. (Maj. opn., at p. 8, citing League of California Cities v. Superior Court (2015) 241 Cal.App.4th 976, 987.)
the privilege to be made.” (11 Cal.L.Rev.Comm. Reports 1163 (1974), italics added.)
II.
Arturo Castañares sought disclosure by the District under the CPRA of “any and all investigations, inquiries, and other reports concerning complaints against or otherwise pertaining to the job performance of [the District’s former CEO, Joe Stuyvesant] conducted since January 1, 2023.” The District responded by claiming that “any and all responsive records” were exempt from disclosure “given the specific facts and circumstances in this particular case.” Castañares sued the District to compel disclosure of documents he suspected had been improperly withheld.
During discovery, the District provided Castañares with a privilege log.
The log identified two documents as responsive to the CPRA request, a “Confidential Memorandum” and a “Confidential Summary Report.” The District asserted that both documents were exempt from disclosure under the CPRA. Among other asserted exemptions, the District claimed the documents were attorney work product and attorney-client privileged communications. At issue here is the Confidential Summary Report. Castañares concedes that the report itself is an attorney-client privileged communication from the District’s counsel to the District.
It is unclear how Castañares and the trial court learned that the Confidential Summary Report had attachments that consisted of documents that had been independently prepared before the report was drafted. But once the court learned the report had attachments, it issued three orders directing the District to disclose an increasing amount of information about the attached documents.
The first order directed the District to “describe, with specificity, each document which the . . . Confidential [S]ummary [R]eport consists of. For example, [the District] is directed [to] identify each attachment or exhibit, if any, to the . . . report.” The District objected and filed a petition for writ of mandate seeking reversal of the order on the ground that it required disclosure of information protected by the attorney-client privilege and work- product doctrine. This court summarily denied the petition.
Consequently, the District filed an amended privilege log, which revealed that a total of 103 documents had been attached to the confidential summary report. The log provided a detailed description of items 1 to 78. It asserted that each of the documents was independently “non-responsive” to the CPRA request, and it also asserted the documents were subject to various exemptions under the CPRA. The log identified items 79 to 103 as “Attorney notes and summary of interview.” With respect to these documents, the log asserted they were subject to various CPRA exemptions including the work- product doctrine and the attorney-client privilege exemptions.
The trial court’s second order directed the District to “augment” the privilege log and identify each of the witnesses that had been interviewed. The District complied with the order and filed a third privilege log with the interviewee’s names.
The trial court’s third order directed the District to produce 61 of the 103 documents that had been attached to the Confidential Summary Report. The District then filed this petition, seeking an immediate stay and to set aside and vacate the order.
III.
I agree with my colleagues that the trial court erred in its first order requiring the District to create an amended privilege log. (Maj. opn., at pp. 2,
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13.) The court should not have ordered the identity of the attachments to the Confidential Summary Report to be disclosed because the list of documents that were selected by the District’s attorney as being important to the investigation was privileged information.
It was privileged because “the attorney-client privilege covers the identity of documents transmitted from an attorney to a client even if the transmitted documents are available to the public. [I]t is the actual fact of the transmission which merits protection, since discovery of the transmission of specific public documents might very well reveal the transmitter’s strategy.” (Mitchell v. Superior Court (1984) 37 Cal.3d 591, 600; accord In re Navarro (1979) 93 Cal.App.3d 325, 327–331 [attorney-client confidentiality “includes the identification of the document transmitted”].)
The identity of the documents selected by the District’s attorney as important to the case was also privileged as non-qualified attorney work product. (See generally Coito v. Superior Court (2012) 54 Cal.4th 480, 494– 497, 500–502 [discussing the definition of attorney work product under California law and holding that “disclosing a list of witnesses from whom an attorney has taken recorded statements may, in some instances, reveal the attorney’s impression of the case”].)
IV.
Thus, the trial court’s first order requiring the District to create an amended privilege log improperly coerced the disclosure of privileged information. When a court erroneously orders the disclosure of privileged information, and the disclosure is later determined to have been error, the disclosed information is inadmissible in that proceeding. (Evid. Code, § 919.) The court’s third order directing the disclosure of some of the documents that were identified by the District as having been attached to the Confidential
Summary Report is therefore invalid because it relied on inadmissible, privileged information. I would vacate the trial court’s third order solely on
this basis.2
DO, Acting P. J.
2 This court’s prior order summarily denying the District’s first writ petition challenging the trial court’s order that it produce the amended privilege log does not have law of the case effect. (Kowis v. Howard (1992) 3 Cal.4th 888, 891 [law of the case doctrine applies only where the denial is accompanied by a written opinion following the issuance of an alternative writ or order to show cause].)