ZVI SPERLING VS JACOB SPERLING

Case Number: *******7502 Hearing Date: November 6, 2024 Dept: 57

The Court is denying Zvi Sperling's motion to compel Naomi Sperling to produce documents that Naomi withheld as privileged. The Court was persuaded by Naomi's arguments that the mediation and/or attorney-client privilege applies to the documents that Zvi is seeking to be produced. Zvi's reply brief did not dent the defense of the assertion of the privileges that Naomi advanced in her opposition to Zvi's motion.

The Court is granting Zvi's ex parte application to specially set for hearing four discovery motions that Zvi has filed but that would not be heard until well after the scheduled start date of the trial in this case. The Court will discuss with the parties a suitable date on which these motions can be heard. The upshot of granting the ex parte is that it is possible that the Court will have to move the trial, and give Zvi what he asked for in that regard last month after all, for two reasons. First, the Court will set the motions for hearing on a date that will give the responding parties sufficient opportunity to oppose the motions and to give Zvi time to file reply briefs. This means that the motions likely will have to be set at least two weeks out from now, which is getting close to the final status conference and trial date. Second, if the Court grants some or all of Zvi's motions, the responding parties will have to sit for depositions and/or produce documents, depending on which motions are granted. Accomplishing all of that may not be possible prior to the trial date.

Case Number: *******7502 Hearing Date: October 10, 2024 Dept: 57

The Court is denying Zvi Sperling's motion to bifurcate the trial. The "equity first" rule on which the bifurcation motion relies is inapplicable. That is because the gist of the claims that Zvi has asserted in his operative Third Amended Complaint against Jacob and Naomi Sperling are legal in nature and thus must be tried before a jury, except the claim against Jacob for specific performance, which the Court could hear in a bench trial if the jury returns a verdict in Zvi's favor on his breach of contract claim against Jacob. Zvi's dissolution claims against Maxim Lighting International, Inc. and Lucca Concepts, Inc. are equitable. But as Zvi himself previously acknowledged, the dissolution claims are intertwined with Zvi's claims against Jacob and Naomi. If necessary after the jury trial, the Court can hear the dissolution claims in a bench trial. Additionally, the Court disagrees with Zvi's argument that his bifurcation request would promote efficiency.

Case Number: *******7502 Hearing Date: May 24, 2024 Dept: 57

On May 6, 2024, the Court heard Plaintiff Zvi Sperling ("Zvi") Motion to Compel Defendant Jacob Sperling ("Jacob") to Produce Documents Improperly Withheld as Attorney-Client Privileged ("the Motion"). Jacob's daughter and co-Defendant Naomi Sperling ("Naomi") and/or Zvi's long-time accountant Samuel Levy ("Levy") were present on all of the communications (e-mail messages) that were the subject of the Motion, either as a sender of the communication or as recipient of the communication (including as a person copied on the communication). Neither Naomi nor Levy is an attorney. Jacob himself was present on some of the communications. Multiple lawyers whom Jacob had retained as of the time of the communication or whom Jacob was consulting at the time were present on some of the communications as the sender or a recipient. Following the hearing on the Motion, the Court took the matter under submission.

On May 13, 2024, the Court issued a ruling ("the Privilege Ruling") that denied the motion in part and granted in part. In the Privilege Ruling, the Court denied the Motion to the extent it sought disclosure of communications on which an attorney whom Jacob had retained or was contemporaneously consulting was present on the communication, either as the sender or a recipient (including as a person copied on the communication). In reaching that conclusion, the Court found that Naomi and Levy were Jacob's agents and that their presence on communications with lawyers whom Jacob had retained or whom Jacob had consulted furthered Jacob's interest in the consultation with the attorney or was reasonably necessary for the transmission of the information to the attorney or the accomplishment of the purpose for which Jacob was consulting the retained or non-retained lawyer, even if Jacob himself was not on these communications. The Court granted the Motion to the extent it sought disclosure of communications on which an attorney whom Jacob had retained or was consulting was not present as a sender or recipient. In other words, the Court determined that communications to and from Naomi and Levy alone, or between one or both of them with Jacob, are not privileged in the absence on the communication of an attorney whom Jacob had retained or was consulting.

Pending before the Court is the ex parte application of Jacob for clarification of the Privilege Ruling ("the Application"). The Application posits that clarification of the Privilege Ruling is warranted as to two categories of communications that Jacob has identified in his attempt to comply with the Privilege Ruling. One category are emails that Naomi sent to Levy describing meetings with Jacob's attorneys and emails that Levy sent to Naomi providing edits, comments, and questions for Naomi to transmit to Jacob's attorneys. Another category are emails in which Naomi forwarded to Levy communications that she (and sometimes Jacob) had with Jacob's attorneys.

The Court is granting the Application to the extent it seeks clarification of the Privilege Ruling. The Court understands why Jacob asked for clarification. But the Application is denied to the extent it seeks the Court's approval of an interpretation of the Privilege Ruling that would enable Jacob to withhold as attorney-client privileged the two categories of communications that prompted Jacob to file the Application.

The client here, Jacob, is the holder of the attorney-client privilege. (Evidence Code Section 953.) The client may waive the attorney-client privilege. (Id. Section 912.) When the client authorizes his or her agent to disclose attorney-client privileged information to a third party, the client waives the privilege; by contrast, an agent's unauthorized disclosure to a third party does not waive the privilege. (DP Pham, LLC v. Cheadle (2016) 246 Cal.App.4th 653, 668 ["Pham"] Here, Jacob's position is that he authorized Naomi and Levy to communicate with one another as his agents about attorney-client privileged matter when attorneys whom Jacob had retained or was consulting were not present on the communications. Under Pham, the authorization of those communications waived the attorney-client privilege. Jacob has not cited any California precedent that shields on attorney-client privilege grounds communications between agents of the client in the absence of the client's attorney. As the Privilege Ruling indicates, Section 952, 953, and 954 of the Evidence Code require the presence of an attorney on communications between the client's agents in order for the communications to be privileged.

In the course of his or her representation of a client, an attorney can give and receive information from agents of the client -- those communications are privileged if the agent is acting within the scope of the agency. (Zimmerman v. Superior Court (the People) (2013) 220 Cal.App.4th 389, 403; see also (D. I. Chadbourne, Inc. v. Superior Court (Smith) (1964) 60 Cal.2d 723, 735.) But this does not mean that agents of the client can have freewheeling exchanges with one another in the absence of the client's attorney about information that would be attorney-client privileged if the attorney were present on the exchange.