Fifth District So Holds Even After County of Santa Clara v. Superior Court.
Earlier this year, in County of Santa Clara v. Superior Court (2010) 50 Cal.4th 35 (reviewed in our July 27, 2010 post), the California Supreme Court narrowed the holding of its prior Clancy decision to permit contingency fee agreements in certain public nuisance actions. In the next case we examine, the issue presented for determination was much more narrow and tangential than the broader contingency fee policies explored in Santa Clara: whether or not a contingency fee agreement in a public nuisance action remains protected by the attorney-client privilege.
The answer to this question was “yes, it is privileged” under the circumstances, in an unpublished decision of the Fifth District in City of Merced v. Superior Court (Exxon Mobil Corp.), Case No. F059301 (5th Dist. Nov. 15, 2010) (unpublished), authored by Presiding Justice Ardaiz.
The appellate court first concluded that contingency fee agreements on their face are protected by the attorney-client privilege under Business and Professions Code section 6149. No nonstatutory exception exists to undermine the privilege as far as producing the fee agreements, with Santa Clara and Clancy not creating such an exception. Beyond that, Exxon–the party wanting production of the fee agreements–failed to make a prima facie showing of facts sufficient to support application of any exception–no circumstances of illegality or abuse were shown. (Nowell v. Superior Court, 223 Cal.App.2d 652, 657 (1963) [mere assertion of abuse does not meet prima facie burden on a privilege issue].)
BLOG UNDERVIEW—Justice Ardaiz, who has been Presiding Justice of the Fifth District for a number of years and a successful district attorney before that, is rumored to step down soon. Justice Hill, who was one year behind co-contributor Mike at Fresno’s Bullard High, appears to be the one who will take over the P.J. position.