Filed 3/11/25 Thompson v. Superior Court CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
TALISHA THOMPSON,
Petitioner, E085018
v. (Super.Ct.No. CIVSB2327869)
THE SUPERIOR COURT OF OPINION SAN BERNARDINO COUNTY,
Respondent;
COUNTY OF SAN BERNARDINO et al.,
Real Parties in Interest.
ORIGINAL PROCEEDINGS; petition for writ of mandate. Stephanie Tanada,
Judge. Petition granted.
Singleton Schreiber, LLP and Benjamin I. Siminou; The Simon Law Group, LLP
and Brandon J. Simon and Allison M. Melendez, for Petitioner.
No appearance for Respondent.
No appearance for Real Parties in Interest.
1 INTRODUCTION
Petitioner filed a petition for writ of mandate to vacate respondent court’s order
granting real parties in interest’s motion to compel petitioner to disclose whether her
attorneys advised her where to seek medical treatment. Petitioner’s writ of mandate also
seeks to vacate respondent court’s order granting real parties’ motion for sanctions. This
court invited respondent and real parties to respond. No response was filed. We grant
the petition and issue a peremptory writ in the first instance directing respondent court to
vacate its order granting real parties’ motion to compel and to enter a new order denying
the motion. We further direct respondent court to vacate its order granting real parties’
motion for sanctions.
FACTUAL AND PROCEDURAL HISTORY
Petitioner is a plaintiff in a civil personal injury action against real parties
stemming from an incident in which petitioner was struck by a San Bernardino County
Sheriff deputy’s vehicle, causing significant spinal injury. During a deposition, counsel
for real parties asked petitioner whether her attorneys referred her to the treating
healthcare providers. Petitioner’s counsel objected to the question, citing attorney-client
privilege, and petitioner did not answer. Real parties moved to compel the answer and
requested sanctions based in large part on the holding in Qaadir v. Figueroa (2021) 67
Cal.App.5th 790 (Qaadir).
On September 18, 2024, respondent court granted real parties’ motion to compel
and awarded $1,819.50 in sanctions. The hearing was not reported, but petitioner’s
2 counsel included a sworn declaration in accordance with California Rules of Court, rule
8.846(b)(3). According to the declaration, respondent court agreed with real parties that
the information was admissible, finding that any conversation petitioner had with her
counsel about medical treatment was not legal in nature and was more akin to a
conversation with a family member or friend. The court found petitioner’s reliance on
Gordon v. Superior Court (1997) 55 Cal.App.4th 1546 (Gordon) to be misplaced,
concluding that Gordon applied only to criminal cases.
STANDARD OF REVIEW
Courts typically avoid writ review of discovery orders. If such an order threatens
to violate a privilege, however, writ relief has been found to be appropriate because there
is no other adequate remedy. (OXY Resources California LLC v. Superior Court (2004)
115 Cal.App.4th 874, 886.) We review the trial court’s discovery ruling and sanctions
award for abuse of discretion. (Cornerstone Realty Advisors, LLC v. Summit Healthcare
Reit, Inc. (2020) 56 Cal.App.5th 771, 789.)
DISCUSSION
The attorney client privilege permits a party to refuse to disclose information
transmitted between the party and his or her attorney, including advice given by the
attorney in the course of the relationship. (Evid. Code, §§ 952, 954.) “The term
‘confidential communication’ is broadly construed, and communications between a
lawyer and his client are presumed confidential, with the burden on the party seeking
disclosure to show otherwise.” (Gordon, supra, 55 Cal.App.4th at p. 1557) “[T]he
3 [attorney-client] privilege does not apply to every single communication transmitted
confidentially between lawyer and client. Rather, the heartland of the privilege protects
those communications that bear some relationship to the attorney’s provision of legal
consultation.” (Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2
Cal.5th 282, 294 (Los Angeles County).)
Petitioner argues that any potential referral that her attorney provided concerning
where she should seek treatment is covered by the attorney-client privilege. (See Evid.
Code, § 950, et seq.) The privilege is statutory and subject to “only a few specific
exceptions.” (Evid. Code, §§ 952, 954; Mitchell v. Superior Court (1984) 37 Cal.3d 591,
599-600 (Mitchell).)
If petitioner’s attorney referred petitioner to a particular medical provider because
the provider would agree, for example, to treat petitioner under a lien agreement, such a
referral would be the type of advice transmitted “in the context of investigating, preparing
and prosecuting a lawsuit,” and not just a recommendation of the type routinely made to a
friend or family member. (Mitchell, supra, 37 Cal.3d at p. 601.) Advice provided by an
attorney in contemplation of threatened litigation has been found to be protected by the
attorney-client privilege. (Titmas v. Superior Court (2001) 87 Cal.App.4th 738, 744.)
The privilege has been found to cover legal advice even when no litigation is threatened.
(Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 120-121.)
Such advice from attorney to client within the context of representation is distinguishable
from other circumstances in which attorney-client privilege has been found not to apply.
4 (See Edwards Wildman Palmer LLP v. Superior Court (2014) 231 Cal.App.4th 1214,
1226 [attorney-client privilege is inapplicable to an attorney acting as a negotiator giving
business advice].)
In the proceedings below, real parties relied heavily on the Qaadir case. In
Qaadir, during opening statements at trial, the defense counsel, with no objection from
the plaintiff, told the jury that the plaintiff was advised by his lawyer to seek treatment
from a particular doctor. (Qaadir, supra, 67 Cal.App.5th at p. 808.) Defense counsel
subsequently asked the plaintiff and another witness whether plaintiff’s counsel referred
the plaintiff to the treating doctor. (Ibid.) The plaintiff objected on relevance grounds,
and the court sustained the objection without permitting the defense to make an offer of
proof. (Id. at p. 808, fn. 6.) On appeal, the reviewing court agreed that it was error for
the trial court to refuse to consider evidence of relevance. However, the appellate court
determined that there was no prejudice to the defendant, because defense counsel was
able to cross-examine the treating physician, who had agreed to a lien-based recovery of
fees, as to whether his lien agreement subjected him to bias or created an incentive to
inflate his bills. (Id. at p. 808.)
The Qaadir case contains no discussion of the attorney-client privilege or whether
it applies to an attorney referral to a medical provider. In their moving papers below, real
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Filed 3/11/25 Thompson v. Superior Court CA4/2 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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
TALISHA THOMPSON,
Petitioner, E085018
v. (Super.Ct.No. CIVSB2327869)
THE SUPERIOR COURT OF OPINION SAN BERNARDINO COUNTY,
Respondent;
COUNTY OF SAN BERNARDINO et al.,
Real Parties in Interest.
ORIGINAL PROCEEDINGS; petition for writ of mandate. Stephanie Tanada,
Judge. Petition granted.
Singleton Schreiber, LLP and Benjamin I. Siminou; The Simon Law Group, LLP
and Brandon J. Simon and Allison M. Melendez, for Petitioner.
No appearance for Respondent.
No appearance for Real Parties in Interest.
1 INTRODUCTION
Petitioner filed a petition for writ of mandate to vacate respondent court’s order
granting real parties in interest’s motion to compel petitioner to disclose whether her
attorneys advised her where to seek medical treatment. Petitioner’s writ of mandate also
seeks to vacate respondent court’s order granting real parties’ motion for sanctions. This
court invited respondent and real parties to respond. No response was filed. We grant
the petition and issue a peremptory writ in the first instance directing respondent court to
vacate its order granting real parties’ motion to compel and to enter a new order denying
the motion. We further direct respondent court to vacate its order granting real parties’
motion for sanctions.
FACTUAL AND PROCEDURAL HISTORY
Petitioner is a plaintiff in a civil personal injury action against real parties
stemming from an incident in which petitioner was struck by a San Bernardino County
Sheriff deputy’s vehicle, causing significant spinal injury. During a deposition, counsel
for real parties asked petitioner whether her attorneys referred her to the treating
healthcare providers. Petitioner’s counsel objected to the question, citing attorney-client
privilege, and petitioner did not answer. Real parties moved to compel the answer and
requested sanctions based in large part on the holding in Qaadir v. Figueroa (2021) 67
Cal.App.5th 790 (Qaadir).
On September 18, 2024, respondent court granted real parties’ motion to compel
and awarded $1,819.50 in sanctions. The hearing was not reported, but petitioner’s
2 counsel included a sworn declaration in accordance with California Rules of Court, rule
8.846(b)(3). According to the declaration, respondent court agreed with real parties that
the information was admissible, finding that any conversation petitioner had with her
counsel about medical treatment was not legal in nature and was more akin to a
conversation with a family member or friend. The court found petitioner’s reliance on
Gordon v. Superior Court (1997) 55 Cal.App.4th 1546 (Gordon) to be misplaced,
concluding that Gordon applied only to criminal cases.
STANDARD OF REVIEW
Courts typically avoid writ review of discovery orders. If such an order threatens
to violate a privilege, however, writ relief has been found to be appropriate because there
is no other adequate remedy. (OXY Resources California LLC v. Superior Court (2004)
115 Cal.App.4th 874, 886.) We review the trial court’s discovery ruling and sanctions
award for abuse of discretion. (Cornerstone Realty Advisors, LLC v. Summit Healthcare
Reit, Inc. (2020) 56 Cal.App.5th 771, 789.)
DISCUSSION
The attorney client privilege permits a party to refuse to disclose information
transmitted between the party and his or her attorney, including advice given by the
attorney in the course of the relationship. (Evid. Code, §§ 952, 954.) “The term
‘confidential communication’ is broadly construed, and communications between a
lawyer and his client are presumed confidential, with the burden on the party seeking
disclosure to show otherwise.” (Gordon, supra, 55 Cal.App.4th at p. 1557) “[T]he
3 [attorney-client] privilege does not apply to every single communication transmitted
confidentially between lawyer and client. Rather, the heartland of the privilege protects
those communications that bear some relationship to the attorney’s provision of legal
consultation.” (Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2
Cal.5th 282, 294 (Los Angeles County).)
Petitioner argues that any potential referral that her attorney provided concerning
where she should seek treatment is covered by the attorney-client privilege. (See Evid.
Code, § 950, et seq.) The privilege is statutory and subject to “only a few specific
exceptions.” (Evid. Code, §§ 952, 954; Mitchell v. Superior Court (1984) 37 Cal.3d 591,
599-600 (Mitchell).)
If petitioner’s attorney referred petitioner to a particular medical provider because
the provider would agree, for example, to treat petitioner under a lien agreement, such a
referral would be the type of advice transmitted “in the context of investigating, preparing
and prosecuting a lawsuit,” and not just a recommendation of the type routinely made to a
friend or family member. (Mitchell, supra, 37 Cal.3d at p. 601.) Advice provided by an
attorney in contemplation of threatened litigation has been found to be protected by the
attorney-client privilege. (Titmas v. Superior Court (2001) 87 Cal.App.4th 738, 744.)
The privilege has been found to cover legal advice even when no litigation is threatened.
(Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 120-121.)
Such advice from attorney to client within the context of representation is distinguishable
from other circumstances in which attorney-client privilege has been found not to apply.
4 (See Edwards Wildman Palmer LLP v. Superior Court (2014) 231 Cal.App.4th 1214,
1226 [attorney-client privilege is inapplicable to an attorney acting as a negotiator giving
business advice].)
In the proceedings below, real parties relied heavily on the Qaadir case. In
Qaadir, during opening statements at trial, the defense counsel, with no objection from
the plaintiff, told the jury that the plaintiff was advised by his lawyer to seek treatment
from a particular doctor. (Qaadir, supra, 67 Cal.App.5th at p. 808.) Defense counsel
subsequently asked the plaintiff and another witness whether plaintiff’s counsel referred
the plaintiff to the treating doctor. (Ibid.) The plaintiff objected on relevance grounds,
and the court sustained the objection without permitting the defense to make an offer of
proof. (Id. at p. 808, fn. 6.) On appeal, the reviewing court agreed that it was error for
the trial court to refuse to consider evidence of relevance. However, the appellate court
determined that there was no prejudice to the defendant, because defense counsel was
able to cross-examine the treating physician, who had agreed to a lien-based recovery of
fees, as to whether his lien agreement subjected him to bias or created an incentive to
inflate his bills. (Id. at p. 808.)
The Qaadir case contains no discussion of the attorney-client privilege or whether
it applies to an attorney referral to a medical provider. In their moving papers below, real
parties argued, without addressing the privilege, that the Qaadir holding requires a
plaintiff to disclose whether her counsel advised her to seek a particular medical provider,
because the information is relevant to the reasonableness of the physician’s lien-based
5 billing. Such a broad reading of Qaadir cannot be squared with established California
Supreme Court precedent, which states “[t]he [attorney-client] privilege is absolute and
disclosure may not be ordered, without regard to relevance, necessity or any particular
circumstances peculiar to the case.” (Costco Wholesale Corp. v. Superior Court (2009)
47 Cal.4th 725, 739 (Costco).) Rather, “the attorney-client privilege is a legislative
creation, which courts have no power to limit by recognizing implied exceptions.” (Ibid.)
Thus, it appears petitioner has stated a prima facie claim of privilege, and real parties
have not demonstrated the communication was not confidential or that the privilege does
not otherwise apply. (Id. at p. 733.) Respondent court’s order compelling disclosure was
therefore erroneous, and both it and the concomitant sanctions award must be vacated.
DISPOSITION
Let a peremptory writ of mandate issue directing the respondent court to (1) vacate
its order granting real parties’ motion to compel and (2) enter a new order denying the
motion. Respondent court is further directed to vacate its order granting real parties’
motion for sanctions. Petitioner shall recover her costs of this writ proceeding. (Cal.
Rules of Court, rule 8.493(a)(1)(A).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS MENETREZ J. We concur:
MCKINSTER Acting P. J.
MILLER J.