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 The Attorney-client Privilege

"Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by: [¶] (a) The holder of the privilege; [¶] (b) A person who is authorized to claim the privilege by the holder of the privilege; or [¶] (c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure." (Evid. Code, § 954.)

"As used in this article, 'client' means a person who, directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing the legal service or advice from him in his professional capacity ...." (Evid. Code, § 951.) [54 Cal.App.4th 639]

[2] When a party asserts the attorney-client privilege it is incumbent upon that party to prove the preliminary fact that a privilege exists. (Mahoney v. Superior Court (1983) 142 Cal.App.3d 937, 940 [191 Cal.Rptr. 425].) Once the foundational facts have been presented, i.e., that a communication has been made "in confidence in the course of the lawyer-client ... relationship, 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 that the communication was not confidential," or that an exception exists. (Evid. Code, § 917; BP Alaska Exploration, Inc. v. Superior Court, supra, 199 Cal.App.3d at p. 1262.)

[1b] We have no doubt that Ms. Zuniga was an "authorized representative" of State Farm within the meaning of Evidence Code section 951 for application of the privilege. [3] "It is no less the client's communication to the attorney when it is given by the client to an agent for transmission to the attorney, and it is immaterial whether the agent is the agent of the attorney, the client, or both." (City & County of S.F. v. Superior Court (1951) 37 Cal.2d 227, 236 [231 P.2d 26, 25 A.L.R.2d 1418]; see also People v. Lines (1975) 13 Cal.3d 500 [119 Cal.Rptr. 225, 531 P.2d 793]; and In re Ochse (1951) 38 Cal.2d 230, 232 [238 P.2d 561].) [1c] However, the attorney-client privilege only protects disclosure of communications between the attorney and the client; it does not protect disclosure of underlying facts which may be referenced within a qualifying communication. (Aerojet-General Corp. v. Transport Indemnity Insurance (1993) 18 Cal.App.4th 996, 1004-1005 [22 Cal.Rptr.2d 862].)

Therefore, to the extent that Ms. Zuniga has knowledge about the practices and procedures of State Farm, or the existence of claims manuals and other documents which are normally utilized by State Farm in the operation of its business, the information is not privileged. (Holm v. Superior Court (1954) 42 Cal.2d 500, 511 [267 P.2d 1025], disapproved on another point in Suezaki v. Superior Court (1962) 58 Cal.2d 166, 176 [23 Cal.Rptr. 368, 373 P.2d 432, 95 A.L.R.2d 1073]; S.F. Unified Sch. Dist. v. Superior Court (1961) 55 Cal.2d 451, 457 [11 Cal.Rptr. 373, 359 P.2d 925, 82 A.L.R.2d 1156].) Also, it would not be a violation of the attorney-client privilege for Ms. Zuniga to divulge that such documents exist but were not produced in connection with the Taylor Action, although to divulge a conversation to that effect or the fact that such information had been delivered to an attorney, would violate the privilege. (People v. Lee (1970) 3 Cal.App.3d 514, 526 [83 Cal.Rptr. 715] ["... the fact that the client delivered ... evidence to his attorney may be privileged, the physical object [or information] itself does not become privileged merely by reason of its transmission to the attorney."].) [54 Cal.App.4th 640]

Nor does the attorney-client privilege protect independent facts related to a communication; that a communication took place, and the time, date and participants in the communication. (Coy v. Superior Court (1962) 58 Cal.2d 210, 219-220 [23 Cal.Rptr. 393, 373 P.2d 457, 9 A.L.R.3d 678].) In addition, the fact that an attorney has retained one or more independent agents to aid the attorney in connection with the litigation does not automatically qualify information discovered by the agents for protection by the privilege. (People ex rel. Dept. of Public Works v. Donovan (1962) 57 Cal.2d 346, 354-355 [19 Cal.Rptr. 473, 369 P.2d 1]; People ex rel. Dept. Pub. Wks. v. Cowan (1969) 1 Cal.App.3d 1001, 1004 [81 Cal.Rptr. 713]; Grand Lake Drive In v. Superior Court (1960) 179 Cal.App.2d 122, 125-126 [3 Cal.Rptr. 621].)

[4] With the foregoing legal principles in mind, we now review the specific items asserted to fall within the attorney-client privilege, along with the evidence presented by State Farm, to determine whether a prima facie case of privilege has been established. We will not take into consideration the actual privileged information in aid of our determination. (Evid. Code, § 915; Shannon v. Superior Court (1990) 217 Cal.App.3d 986, 995 [266 Cal.Rptr. 242].) To the extent necessary, we will identify the subject matter covered in each of the challenged paragraphs, but without disclosing the privileged communication. (Coy v. Superior Court, supra, 58 Cal.2d at p. 219.)

State Farm asserts the attorney-client privilege to paragraphs 3 and 4 of the September 19 Zuniga declaration and to numerous paragraphs of her September 25 declaration, which we will identify in the following discussion.

In paragraph 3 and 4 of the September 19 declaration and paragraphs 14, 15, 18, and 23 of the September 25 declaration, Ms. Zuniga references conversations with various people within State Farm. State Farm objects to each paragraph to the extent that counsel may have been present during the conversation or that the conversations were at the direction of counsel to pass on legal advice. For example, with regard to paragraph 3 of the September 19 declaration, Amy Zuniga declares that she received instructions "not to provide certain relevant information at my depositions." (See post, p. 648.) State Farm argued: "it is impossible to determine who 'instructed' Zuniga concerning her deposition testimony. It is likely that any such 'instruction' was made by State Farm's counsel. As such, the communication is privileged." (Italics added.) The objections to the other paragraphs are of a similar nature.

As previously noted, it is the duty of the party asserting the privilege to present evidence which establishes the existence of a communication [54 Cal.App.4th 641] that falls within the privilege. (Mahoney v. Superior Court, supra, 142 Cal.App.3d at p. 940.) In connection with the request for protective order, and in reply to the memorandum of authorities submitted by real parties, State Farm presented the declarations of Vanessa Gudelj and John Poptanich, each a supervisor of Amy Zuniga. G. Arthur Meneses, an attorney within the Berger Firm who had the primary responsibility for working with Ms. Zuniga, also provided two declarations. Mr. Meneses declared that he worked with Ms. Zuniga in preparation for her deposition, but that he did not advise her "to conceal relevant, non-privileged, discoverable information at her deposition or at any other time." Ms. Gudelj declared that she spoke with Ms. Zuniga prior to her deposition and gave her instructions on how to respond, but she does not state that she did so at the request of counsel. Mr. Poptanich also fails to establish that any conversations referenced in any of the subject paragraphs were at the direction of counsel. Therefore, State Farm has failed to demonstrate that any of these referenced communications fall within the attorney-client privilege.

Paragraph 5 fn. 4 refers to statements made to Ms. Zuniga by Richard Churik, the operator of the automatic insertion machine, "and others" at State Farm. State Farm fails to supply any information which would place the asserted communications within the scope of attorney-client privilege.

Paragraphs 6, 7, 9 and 10 refer to inspections Ms. Zuniga made of the automatic insertion machine system (the AIM system) with Richard Churik, underwriter Charles G. Hook, Attorney G. Arthur Meneses of the Berger Firm, and a consultant by the name of Don Winslow. No specific communications are referenced in paragraph 6, only factual information that meetings took place, the subject matter of the meetings, and who was present. Therefore, the information is not privileged. (Coy v. Superior Court, supra, 58 Cal.2d at pp. 219-220.) Paragraphs 7, 9 and 10 recount observations by Ms. Zuniga and conversations in the presence of Mr. Meneses during the inspections referred to in paragraph 6. This presumptively brings the conversations within the attorney-client privilege. (City & County of S.F. v. Superior Court, supra, 37 Cal.2d at p. 236.) However, Ms. Zuniga's observations, independent of the conversations, would not be privileged.

Paragraph 11 reiterates a statement made by Ms. Zuniga to Mr. Meneses regarding her individual experience as a State Farm policyholder, to which he did not reply. It is apparent from the context that she was attempting to pass on information to him relevant to the Taylor Action. Therefore, this conversation would be privileged, but her independent knowledge learned as a policyholder of State Farm would not be. (Aerojet-General Corp. v. Transport Indemnity Insurance, supra, 18 Cal.App.4th at pp. 1004-1005.) [54 Cal.App.4th 642]

Paragraph 12 references a conversation between Mr. Meneses and Ms. Zuniga regarding the discovery of documents in connection with the automatic insertion machine. The first two sentences of the paragraph are not privileged because they merely relate factual information. (Aerojet-General Corp. v. Transport Indemnity Insurance, supra, 18 Cal.App.4th at pp. 1004-1005.) A portion of the paragraph reiterates information obtained by Ms. Zuniga from the operator of the automatic insertion machine, Richard Churik. It appears from the context that Ms. Zuniga obtained this information in order to pass it on to Mr. Meneses; therefore the communication would be privileged. (City & County of S.F. v. Superior Court, supra, 37 Cal.2d at p. 236.)

The last phrase within paragraph 16 contains a comment from Mr. Meneses about a telephone conversation between Ms. Zuniga and State Farm employees John Bishop, Sandra Hobbs, Vanessa Gudelj and John Poptanich, which occurred in 1996. Mr. Meneses was not a party to the call. What was said between Mr. Meneses and Ms. Zuniga about the conversation is privileged. However, the remainder of the paragraph is not privileged because it merely sets out factually that a conversation occurred and among whom. (Coy v. Superior Court, supra, 58 Cal.2d at pp. 219-220.)

Paragraph 17 reports the conversation referenced in paragraph 16. State Farm again relies upon the argument that the conversation may have occurred "at the request of counsel" or "Mr. Bishop was communicating to his subordinates legal advice of counsel...." No evidence is presented to support this speculation.

Paragraph 22 describes a conversation with David Tannenbaum, a company employee in the "Discovery Unit," about how Ms. Zuniga was to respond to discovery in earthquake cases. State Farm presents evidence that Mr. Tannenbaum is an in-house attorney who works on discovery matters in pending litigation cases. This establishes a presumption that the communication is privileged.

Paragraph 24 references memoranda Ms. Zuniga prepared in connection with the discovery requests. The first sentence, identifying the fact that she prepared memoranda, is not privileged. However, the second sentence is. (People v. Lee, supra, 3 Cal.App.3d at p. 526.)

The last sentence of paragraph 25 indicates that Ms. Zuniga spoke with Mr. Meneses, again with regard to specific discovery requests relating to the automatic insertion machine. All but the last sentence is factual material about what items were requested during discovery but not produced. That [54 Cal.App.4th 643] portion is not privileged. We agree that the last sentence of the paragraph falls within the attorney-client privilege.

Paragraphs 31 and 32 set forth facts about the retention of "professional witness consultants" and how they are utilized by State Farm to prepare employees for testimony during depositions and trial. State Farm objects that "the conversations between counsel for State Farm's consultants and State Farm employees constitute confidential communications made in the course of the attorney-client relationship." Mr. Meneses declares: "To the extent Ms. Zuniga participated in witness preparation meetings, the only persons present were myself, a consultant (if retained) the witness, and a member or members of the suits against the company unit.... The consultants she mentions in paragraph 31 in the past have been retained by my firm in connection with litigation in which I was representing various clients on different cases. To the extent these consultants were retained, they were retained for my benefit to assist me in my representation of my client." At least some of this information discloses communications which appear to have arisen in a privileged setting.

Paragraph 33 references communications between Don Winslow and Charles Hook in preparation for Hook's deposition. There is no evidence presented which suggests that these communications took place with counsel present or at the request of counsel for State Farm, although Mr. Winslow has been described in the documentation as a consultant retained by counsel for State Farm. We will assume that this item is privileged.

In summary, we conclude that portions of paragraphs 7, 9, 10, 11, 12, 16, 24 and 25, and all of paragraphs 22 and 31-33, fall within the attorney-client privilege. The remainder do not so qualify.
State Farm Fire & Casualty Co. v. Superior Court (Taylor) (1997) 54 Cal.App.4th 625 , 62 Cal.Rptr.2d 834

   
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