The opinion
Filed 4/4/25 (prior 4/1/25 modification order vacated; unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
CHRISTIAN L. JOHNSON, C099319
Plaintiff and Appellant, (Super. Ct. No. STK-CV-
UCR-2019-281)
v.
ORDER MODIFYING
DEPARTMENT OF TRANSPORTATION, OPINION AND DENYING
REHEARING
Defendant and Respondent.
[NO CHANGE IN
JUDGMENT]
THE COURT:
To correct a clerical error, the court vacates the April 1, 2025, order modifying the
opinion and denying rehearing.
It is ordered that the published opinion filed herein on March 17, 2025, be
modified as follows:
1
On page 8, in the first sentence of the first paragraph, the words “On January 10,
2023,” and “which stayed the case” are deleted, and the words “and on January 10, 2023,
this court stayed the case” are added. As modified, this sentence now reads:
Johnson filed a petition for writ of mandate in this court, and on January 10,
2023, this court stayed the case.
This modification does not change the judgment. Appellant’s petition for rehearing is
denied.
BY THE COURT:
/s/
HULL, Acting P. J.
/s/
FEINBERG, J.
/s/
WISEMAN, J.*
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
2
Filed 3/17/25 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
CHRISTIAN L. JOHNSON, C099319
Plaintiff and Appellant, (Super. Ct. No. STK-CV-
UCR-2019-281)
v.
DEPARTMENT OF TRANSPORTATION,
Defendant and Respondent.
APPEAL from an order of the Superior Court of San Joaquin County, Barbara A.
Kronlund, Judge. Affirmed.
Law Offices of John A. Shepardson and John A. Shepardson for Plaintiff and
Appellant.
Erin E. Holbrook, Alan M. Steinberg, Gina L. Cardoza, W. Christopher Sims and
Danielle Sullivan for Defendant and Respondent.
1
Plaintiff Christian L. Johnson sued his employer, defendant California Department
of Transportation (Caltrans), based on claims arising out of his employment. While the
suit was pending, Paul Brown, an attorney for Caltrans, sent an email about the litigation
(the Brown email) to Nicolas Duncan, Johnson’s supervisor. Duncan sent an image of the
email to Johnson, who shared it with his attorney, John Shepardson. Johnson and
Shepardson then shared the email with several retained experts and other individuals.
After extensive meet-and-confer communications, Caltrans sought a protective
order on the ground that the email was covered by the attorney-client privilege. The trial
court entered the order.
In the months that followed, the parties engaged in a protracted dispute concerning
Johnson’s and Shepardson’s compliance with the protective order’s terms. Eventually,
Caltrans filed a motion to enforce the order and later a motion to disqualify Shepardson
and three retained experts. The trial court disqualified Shepardson and the experts.
On appeal, Johnson challenges the trial court’s disqualification order. Among
other arguments, he claims that the Brown email was not protected by the attorney-client
privilege, Caltrans waived any privilege through undue delay, and the court abused its
discretion in ordering the drastic remedy of disqualification. We find no merit in his
arguments and will affirm the order.
BACKGROUND
I.
Johnson’s first amended complaint, filed in March 2019, alleged fifteen claims
against Caltrans, including for discrimination, harassment, and retaliation. On
January 10, 2022, while the suit was pending, Paul Brown, an attorney for Caltrans, sent
an email to Nicolas Duncan, who was Johnson’s supervisor at the time and not a named
party in the litigation. The email contained a “CONFIDENTIALITY NOTICE” that
stated: “This is a privileged attorney-client communication and/or is covered by the
attorney work-product doctrine. It is for the sole use of the intended recipient(s). Any
2
unauthorized review, use, disclosure, or distribution is prohibited. If you are not the
intended recipient, please contact the sender by reply e-mail and destroy all copies of the
original message. Do not print, copy or forward.”
Unbeknownst to Caltrans, Duncan took a photograph of the email and sent it to
Johnson, who gave it to his attorney, John Shepardson. It is unclear why Duncan did this,
and the unredacted email itself is not a part of the record. At this point in the case, trial
was set for April 18, 2022.
The next day, Shepardson emailed Caltrans’s counsel, Christopher Sims, attaching
the image and saying it “was sent to my client.” Shepardson asserted that the email was
intentionally disclosed and so “appears to be a waiver of attorney-client privilege, if any
privilege attaches to communications with Mr. Duncan.” Shepardson also stated that the
email was “distressing” to Johnson and asked Caltrans to “cease and desist any and all
communications with employees that are misleading about the merits of [Johnson’s]
claims.”
Approximately four hours later, Sims responded to Shepardson’s email. Sims said
that the Brown email was an attorney-client privileged communication as evidenced by
the confidentiality language at the bottom of the email. Sims further stated: “Pursuant to
the language contained in the email, as well as to [the] code of ethics, we request that you
and your client delete or destroy the email. Further, Mr. Duncan does not have the
authority to waive attorney-client privilege on behalf of [Caltrans].” Later that day,
Shepardson responded by email requesting legal authority supporting Caltrans’s assertion
that the privilege applied to communications with Duncan.
The next day, Shepardson sent a letter to Sims entitled “Johnson v. California
Department of Transportation (Good Faith Meet and Confer Re Attorney Paul Brown’s
False & Misleading Email to Mr. Duncan, Christian Johnson’s Boss.)” The letter asserted
that the Brown email was not protected by the attorney-client privilege; and if it was
protected, the privilege was waived because the email was disclosed and was subject to
3
the crime-fraud exception. The letter demanded that Brown cease and desist from
making any further “false and misleading” statements to Duncan. It also demanded that
Brown “send a clarifying statement” to Duncan to provide a balanced “and accurate
depiction” of Johnson’s history at Caltrans.
Approximately two weeks later, on January 28, 2022, Shepardson sent another
letter to Sims. The letter reiterated Johnson’s demand that Caltrans stop providing “false
and/or misleading information to any witnesses” and said that the Brown email was
“emotionally damaging” to Johnson. The letter additionally stated that Shepardson
would be providing the email to the retained experts “for its impact on their opinions.”
The email would also be offered into evidence at trial. The letter closed by saying:
“Unless otherwise promptly informed, I will assume there is no objection to the processes
outlined above.”
That same day, Johnson met with Bennett Williamson, Ph.D., who had been
retained by Shepardson to provide expert testimony on Johnson’s claim that he suffered
psychological harm as a result of Caltrans’s alleged wrongdoing. Johnson showed
Williamson the Brown email, and Williamson read it.
On February 3, 2022, Sims sent a letter to Shepardson. Citing Upjohn Co. v.
United States (1981) 449 U.S. 383, Commodity Futures Trading Com. v. Weintraub
(1985) 471 U.S. 343, and California State Bar Rules of Professional Conduct, rule 4.4,
Sims maintained that the Brown email was covered by the attorney-client privilege and
requested that Shepardson “immediately destroy the email[] and any copies.” The letter
further said: “Caltrans will resist any attempt made by you to include the email in this
action or to offer it as evidence at trial. The email is an attorney-client privileged
communication that you should not be in possession of and it is only in your possession
because it was provided to you by an individual who lacked the authority or right to do
so. [¶] As for your assertion that you plan to share the email with your experts, again we
demand you refrain from doing so. The email is a non-discoverable communication that
4
is protected both by attorney-client privilege and the work product doctrine.” Sims
advised Shepardson that if he did “not immediately cease dissemination and destroy all
copies of Mr. Brown’s email to Mr. Duncan,” Caltrans would seek a protective order
from the court and “any and all other remedies provided by law.”
Shepardson responded with a letter the same day. It stated that Johnson had
“disclosed the email to Dr. Williamson so that his psychological evaluation was based on
the truth.” Shepardson said that if Johnson had not “disclose[d] the contents of the email
and yet ha[d] this new round of emotional distress, his objective scoring may show he’s
lying and/or the interview with Dr. Williamson harmed by lack of a clear statement of his
condition and the causes of it.” The letter also set forth Shepardson’s additional legal
arguments for why the email was not privileged, including his view that the “dominant
purpose” of the email was to “maliciously damage [Johnson’s] career and generate a
hostile witness against him,” that Duncan was not the one whose actions had
“ ‘embroiled’ Caltrans ‘in serious legal difficulties,’ ” and that the email made false
claims and was therefore “fraudulent.”
In early February 2022, the parties exchanged a series of written correspondence.
Among other things, the parties disagreed about whether the assistance of the appointed
discovery referee was required, and Shepardson asked the trial court to set an ex parte
hearing about the email. The trial court declined Shepardson’s request, stating that the
matter should be addressed by the referee.
In an email to Caltrans, Shepardson repeated his statement that Johnson had given
the Brown email to Williamson. The email additionally stated that they had given the
Brown email to Johnson’s “HR experts.”
On February 17, 2022, Sims sent a letter to Shepardson advising him that further
meet-and-confer efforts would be futile because of what Caltrans saw as Shepardson’s
“repeated misrepresentations regarding our position on the attorney-client privilege with
5
Caltrans employees and baseless claim of criminal activity.” Sims further noted that
Caltrans would be filing a motion concerning the email “in the near future.”
The same day, the trial court stayed the action pending resolution of an unrelated
motion to disqualify Shepardson based on his representation of Johnson’s mother. The
court lifted the stay on April 1, 2022. The court also vacated the April 18, 2022 trial date;
in June 2022, trial was reset for May 8, 2023. On June 21, 2022, Sims served a notice
stating that he would be unavailable from July 1, 2022 to August 31, 2022.
II.
On August 18, 2022, Caltrans filed a motion for protective order. The motion
asked for an order prohibiting further disclosure or use of the Brown email and its
contents, compelling the return or destruction of any existing copies of the email, and
requiring Johnson to identify everyone to whom the email had been disclosed. The
motion was supported by a declaration from Brown stating that he had sent the email
within the scope of his representation of Caltrans for the purpose of preparing “Caltrans’s
defense as part of the investigation into the claims by [Johnson].”
In opposition to the motion, Johnson filed, among other things, a declaration by
Williamson. Williamson stated that “[i]t would be difficult, and perhaps impossible, to
give testimony about [Johnson’s] psychological harm . . . without consideration of the
damaging email.”
The trial court referred the motion to the appointed discovery referee, and the
referee issued a recommended ruling. On January 3, 2023, the trial court overruled
objections to the recommendation and adopted the referee’s ruling. The ruling concluded
that Caltrans had made a showing that the Brown email was covered by the attorney-
client privilege. Citing Upjohn Co. v. United States, supra, 449 U.S. 383, 391, the court
determined that the email to Duncan was privileged because its dominant purpose was to
obtain relevant information from Duncan and prepare Caltrans’s defense in the case. The
email was confidential, as indicated by the confidentiality warning at the end. And
6
Caltrans had not waived the privilege through disclosure, delay in bringing the motion, or
by other means.
In discussing whether Caltrans had unduly delayed in filing the motion, the trial
court cited State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, 656-657
(State Fund) and McDermott Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th
1083, 1108-1109 (McDermott), two cases involving a lawyer’s ethical duties upon
receiving documents that are or may be privileged. The court said that Caltrans could
have reasonably expected Shepardson to comply with his duties under State Fund. The
court acknowledged “it may be too much to say that Mr. Shepardson should have
concluded that the Brown e-mail was ‘obviously’ privileged,” as understood in State
Fund. Shepardson realized he had received material that “may be privileged” and
“responded to his recognition of the issue by immediately informing Mr. Sims of the
disclosure, as required by McDermott. At that point the burden shifted to defense counsel
to ‘take appropriate steps to protect the materials.’ ” Caltrans sought to protect the email
by asserting the privilege to Shepardson. In subsequent communications, Shepardson did
not say he would proceed to distribute the email; and absent any such warning, Caltrans
did not unreasonably delay.
The trial court’s order concluded that the Brown email was protected as an
attorney-client communication and could not be introduced into evidence at trial. It
prohibited Johnson and Shepardson “from any further dissemination of the Brown e-
mail.” It ordered Johnson and Shepardson to destroy or return “all copies of the Brown
e-mail” and file a compliance declaration stating they had done so and identifying “all
persons to whom the Brown e-mail is known to have been disclosed, and the date of each
disclosure.” The order stated that it was not addressing whether Johnson or his retained
experts could testify about the email or its effects on Johnson. It also awarded Caltrans
$4,400 in attorneys’ fees.
7
On January 10, 2023, Johnson filed a petition for writ of mandate in this court,
which stayed the case. On February 6, 2023, we dismissed the petition and vacated the
stay.
III.
On March 28, 2023, Caltrans sent a letter to Shepardson asserting that he had not
complied with the protective order. Caltrans advised that Shepardson had failed to file
declarations showing compliance with the trial court’s order as required and had not paid
the attorneys’ fees awarded. The letter requested compliance by April 4, 2023 and stated
that Caltrans would file a motion to enforce if Shepardson failed to comply by that date.
On April 3, 2023, Johnson filed in this court another petition for writ of mandate
with a request for a stay. This court denied the petition.
On April 17, 2023, Caltrans filed a motion to enforce the protective order. Shortly
thereafter, on April 24, 2023, Johnson and Shepardson served and filed declarations
stating they had complied with the protective order and paid the $4,400 due.
Shepardson’s declaration stated that he had discussed the Brown email with several
individuals, including Williamson, on an ongoing basis as of the date of the declaration.
The declarations did not state whether the email itself had been provided to those
individuals or whether Johnson and Shepardson had retrieved the email. Shepardson
later supplemented his declaration to clarify that he had removed and destroyed his own
copies of the email as of April 24, 2023.
At a hearing on June 6, 2023, the trial court denied Caltrans’s motion to enforce as
moot but awarded Caltrans $2,640 in attorneys’ fees incurred in preparing and arguing
the motion. The order was without prejudice to a new motion concerning violations of
the protective order. The court, however, advised the parties that they should meet and
confer first.
During the month of June 2023, the parties met and conferred concerning
Shepardson’s and Johnson’s compliance with the protective order. On June 13, Sims sent
8
Shepardson a letter stating that, based on the statements made in his compliance
declarations, it appeared that Shepardson was continuing to use and disseminate the
Brown email even after the issuance of the protective order. Shepardson’s declarations
also failed to provide assurance that the individuals to whom the email had been
distributed had destroyed their copies. Johnson’s declaration had similar deficits.
Two days later, Shepardson sent a responsive letter to Sims. Shepardson asserted
that the protective order permitted “verbal communications about the Brown email and its
contents” and argued that Johnson and others could testify about the email. According to
Shepardson, because the protective order did not address whether the parties could testify
about the email, it allowed Shepardson and Johnson to verbally discuss the email.
Shepardson additionally argued that Caltrans had waived any objections to third parties
possessing the email because it had delayed in seeking enforcement of the privilege,
rendering the trial court’s protective order “moot.” He also maintained that Caltrans was
required to file a motion under Code of Civil Procedure section 1008 to expand the
protective order and that he and Johnson had complied with the protective order.
IV.
On June 28, 2023, Caltrans filed a motion to disqualify Shepardson and the
experts. At the time of the motion, trial was set for August 28, 2023.
Johnson responded by arguing that the motion was essentially a renewed motion
and therefore violated Code of Civil Procedure section 1008, which generally prohibits
motions to reconsider absent satisfaction of certain preconditions. The trial court rejected
this argument and set the motion for hearing.
In a declaration by Sims, Caltrans noted that Williamson had evaluated Johnson at
least twice after the disclosure of the Brown email and that Williamson had relied on the
email to form his opinion. Two other experts retained by Johnson, Jan Duffy and Virginia
Simms, had also reviewed the Brown email, and Caltrans had not been able to depose any
of the three experts because of concerns they would testify about the email as part of their
9
opinions. Caltrans had not had its own expert, Glenn Hammel, who had not received or
reviewed a copy of the email, evaluate Johnson since March 2021 out of concern that
Johnson would discuss the email; Caltrans likewise did not want to offer Hammel for
deposition because of concerns that Shepardson would discuss the email. Moreover,
Shepardson’s compliance declaration indicated that the email had been given to three
percipient witnesses who could be called at trial.
Shepardson filed a declaration noting the extensive history of the case, which had
spanned five years and included 35 depositions, thousands of pages of documents
exchanged, a mediation, a settlement conference, and the appointment and termination of
two discovery referees. He explained that it would be difficult for Johnson to retain new
experts at this point in the litigation. Shepardson also asserted that he had not discussed
the contents of the email with anyone following the January 3, 2023 protective order. He
intended to offer testimony about the Brown email at trial. Shepardson also clarified his
prior compliance declarations, providing another list of individuals to whom he had given
the email.
Johnson also filed declarations from his experts in opposition to Caltrans’s motion.
Williamson declared he could testify at trial with or without relying on the Brown email,
given the email’s declining importance as time passed. Duffy declared that she did not
recall seeing the Brown email, although she was told she had received it, and did not need
to rely on it to testify. Simms had received the email, could testify without relying on it,
and said she would “look for direction from attorney Shepardson and the Court regarding
[the] scope and degree of [her] trial testimony regarding the Brown email.”
On August 24, 2023, the trial court issued a tentative order granting the motion to
disqualify Shepardson and the experts. Shepardson did not timely request argument, and
the court adopted the tentative ruling. In the order, the trial court observed that, based on
Shepardson’s April 24, 2023 compliance declaration, he disclosed or discussed the Brown
email with several individuals even after the court’s January 3, 2023 protective order.
10
The court found it “clear that these disclosures were made in spite of CALTRANS’
assertion that the Brown email was a privileged and confidential communication and
even after the Court found the Brown email to be a privileged and confidential
communication.” The trial court further concluded that Shepardson had a duty to refrain
from using or disclosing the email while the parties and the court resolved the dispute as
to the email’s status. But he failed to abide by that duty. The court explained:
“Mr. Shepardson’s testimony . . . establishes that Mr. Shepardson made the decision—
early on—to use the Brown email in this litigation in spite of CALTRANS’ protests. In
opposition, Mr. Shepardson argues that there were delays in CALTRANS’ responses and
he suggests that he consistently reached out to address and resolve the issue, but
Mr. Shepardson’s May 23, 2023 declaration and [accompanying exhibit] undermine his
argument. Mr. Shepardson’s testimony confirms that the decision to use the Brown email
was made on January 28, 2022; that is, approximately two weeks after the inadvertent
disclosure and after CALTRANS asserted that the communication was privileged and
confidential.”
The trial court additionally determined that Shepardson’s conduct would prejudice
the ongoing proceedings. It rejected Williamson’s statement that he could now testify
without the Brown email, noting it was contradicted by his earlier statement that it would
be “difficult, and perhaps impossible” to testify without it. The Simms and Duffy
declarations also raised concerns. They noted that Caltrans had not demanded the return
or destruction of the Brown email, but said nothing about Shepardson, suggesting he had
not instructed them to delete or destroy the email. The experts also could not be deposed
without risking waiver of the privilege, causing significant damage to the litigation. The
trial court concluded: “Mr. Shepardson’s past disclosure and continuing use of the Brown
email will have a substantial and continuing effect on future proceedings in this action.
Mr. Shepardson is disqualified because his review and use of the Brown email goes
beyond a ‘mere disclosure.’ . . . Mr. Shepardson elected to use the Brown email as part of
11
his case against CALTRANS prior to the resolution of the dispute regarding its nature.
Mr. Shepardson read the Brown email; he reviewed it; he studied it; he evaluated it; he
shared it; and, he incorporated its contents into the case and into his trial strategy. Having
done so, Mr. Shepardson’s continued participation in this case as JOHNSON’s counsel
raises the likelihood that use of the Brown email could affect the outcome of these
proceedings both in terms of CALTRANS’ rights against use of its privileged
communications and in terms of the integrity of these judicial proceedings and public
confidence in them.”
The court vacated the trial date, and Johnson filed a notice of appeal.
DISCUSSION
“A trial court’s authority to disqualify an attorney derives from the power inherent
in every court ‘[t]o control in furtherance of justice, the conduct of its ministerial officers,
and of all other persons in any manner connected with a judicial proceeding before it, in
every matter pertaining thereto.’ ” (People ex rel. Dept. of Corporations v. SpeeDee Oil
Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145.) “[U]ltimately the issue involves a
conflict between a client’s right to counsel of his choice and the need to maintain ethical
standards of professional responsibility. ‘The preservation of public trust both in the
scrupulous administration of justice and in the integrity of the bar is paramount . . . .
[The client’s recognizably important right to counsel of his choice] must yield, however,
to considerations of ethics which run to the very integrity of our judicial process.’ ”
(Comden v. Superior Court (1978) 20 Cal.3d 906, 915, second bracketed insertion in
original.)
“A trial court’s decision to grant or deny a motion to disqualify counsel is
generally reviewed for abuse of discretion.” (O’Gara Coach Co., LLC v. Ra (2019)
30 Cal.App.5th 1115, 1123; accord Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th
807, 819 (Rico).) “ ‘In exercising its discretion, the trial court must make a reasoned
judgment that complies with applicable legal principles and policies.’ ” (Clark v.
12
Superior Court (2011) 196 Cal.App.4th 37, 46 (Clark).) “ ‘The order is subject to
reversal only when there is no reasonable basis for the trial court’s decision.’ ” (Ibid.)
The trial court’s express and implied factual findings are reviewed for substantial
evidence. (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc.,
supra, 20 Cal.4th at p. 1143.) We draw all inferences in favor of the prevailing party and
accept the trial court’s resolution of conflicts in the evidence. (Clark, at pp. 46-47.)
I.
An order on a motion to disqualify counsel is immediately appealable as a final
determination of rights on a collateral matter. (Meehan v. Hopps (1955) 45 Cal.2d 213,
216-217.) As a threshold matter, however, Johnson argues that the trial court lacked
jurisdiction to decide Caltrans’s motion to disqualify. He maintains that the motion was
barred by Code of Civil Procedure section 1008, which forbids renewed motions seeking
“the same order” unless the moving party fulfills enumerated conditions that Caltrans did
not satisfy here. Johnson posits that the motion to disqualify was a renewed motion as to:
(1) the protective order because it sought to change the applicable State Fund standard
and expand the protective order to cover Johnson’s experts, and (2) the motion to enforce
the protective order because that motion was denied as moot.
Code of Civil Procedure “[s]ection 1008 expressly applies to all renewed
applications for orders the court has previously refused.” (Even Zohar Construction &
Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 840.) Its purpose
“is ‘ “to conserve judicial resources by constraining litigants who would endlessly bring
the same motions over and over, or move for reconsideration of every adverse order and
then appeal the denial of the motion to reconsider.” ’ ” (Id. at pp. 839-840.) The statute
is jurisdictional and the exclusive means for a party to renew a previous motion or to seek
reconsideration of a prior order. (Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368,
384; Even Zohar Construction, at p. 840.)
13
Code of Civil Procedure section 1008 does not apply in the circumstances present
here. Caltrans’s motion to disqualify did not seek reconsideration of the trial court’s
ruling on the motion for protective order. Contrary to Johnson’s contention, the goal of
the motion to disqualify was not to relitigate the trial court’s application of State Fund
and the court’s observation that the Brown email may not have been “obviously
privileged.” Nor was Caltrans effectively attempting to disqualify the experts in the
motion for protective order by seeking to prevent the dissemination of the email to them.
The motions were seeking distinctively different relief based on different facts; the
motion to disqualify was not a renewed motion under the statute. (See California
Correctional Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 43.)1
As to the motion to enforce the protective order, which the trial court denied as
moot, Caltrans correctly notes that the trial court expressly left open the possibility of
new or additional motions concerning violations of the protective order. And in any
event, the relief sought in the motion to enforce the protective order—compliance with
the protective order—was different than the relief sought in the motion to disqualify—the
disqualification of Shepardson and the three experts. Accordingly, the motion to
disqualify was not seeking the “ ‘same order’ ” as the motion to enforce the protective
1 Johnson also suggests that Shepardson should not have been covered by the protective
order in the first place because Caltrans’s motion did not expressly seek relief against
him. Johnson cites Code of Civil Procedure section 1010 and California Rules of Court,
rule 3.1110(a), which require a notice of motion to state the nature of the relief sought in
the motion and the grounds for the motion. The purpose of these requirements is to
apprise the court and the adverse party of the legal issues in the motion; “[a]n omission in
the notice may be overlooked if the supporting papers make clear the grounds for the
relief sought.” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125.) The notice and
its accompanying papers make clear that Shepardson’s role in the dissemination of the
Brown email was at issue. Indeed, the introduction of the memorandum of points and
authorities in support of the motion is largely devoted to Shepardson’s actions.
Moreover, the notice of motion requests a protective order covering “Plaintiff,” and it is
clear that term encompassed not only Johnson himself but also his agents, including
Shepardson, in his capacity as Johnson’s counsel.
14
order. (California Correctional Peace Officers Assn. v. Virga, supra, 181 Cal.App.4th at
p. 43.)
In his reply brief, Johnson notes a previous motion to disqualify Shepardson based
on a conflict of interest and appears to argue that the motion to disqualify Shepardson and
the experts was a renewal of the earlier motion to disqualify. Johnson apparently made
this argument before the trial court but did not raise it in his opening brief. The argument
is therefore forfeited, and we need not address it. (Varjabedian v. Madera (1977)
20 Cal.3d 285, 295, fn. 11.)
II.
Johnson next contends that the trial court’s disqualification order lacked basis
because the Brown email was not protected by the attorney-client privilege. We disagree.
A.
“Protecting the confidentiality of communications between attorney and client is
fundamental to our legal system. The attorney-client privilege is a hallmark of our
jurisprudence that furthers the public policy of ensuring ‘ “the right of every person to
freely and fully confer and confide in one having knowledge of the law, and skilled in its
practice, in order that the former may have adequate advice and a proper defense.” ’ ”
(People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc., supra,
20 Cal.4th at p. 1146.) “The attorney-client privilege protects the transmission of
information regardless of the content or whether the information is discoverable from
other sources. [Citation.] It attaches to a confidential communication between the
attorney and the client and bars discovery of the entire communication, including
unprivileged material.” (DP Pham LLC v. Cheadle (2016) 246 Cal.App.4th 653, 664; see
Evid. Code, § 952.)
Corporate clients and public entities can claim the privilege. (Costco Wholesale
Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 (Costco); Roberts v. City of Palmdale
(1993) 5 Cal.4th 363, 370; see Evid. Code, § 953.) Attorney communications with agents
15
and employees of such entities may be covered by the privilege. (Upjohn Co. v. United
States, supra, 449 U.S. at pp. 391-393; D. I. Chadbourne, Inc. v. Superior Court (1964)
60 Cal.2d 723, 737 (D. I. Chadbourne).) “[T]o determine whether a communication is
privileged, the focus of the inquiry is the dominant purpose of the relationship between
the parties to the communication.” (Clark, supra, 196 Cal.App.4th at p. 51.)
“The party claiming the privilege has the burden of establishing the preliminary
facts necessary to support its exercise, i.e., a communication made in the course of an
attorney-client relationship. [Citations.] Once that party establishes facts necessary to
support a prima facie claim of privilege, 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.” (Costco, supra, 47 Cal.4th at p. 733.)
“ ‘The question whether the attorney-client privilege applies to a particular
communication is a question of fact if the evidence is in conflict.’ [Citation.] ‘ “When
the facts, or reasonable inferences from the facts, shown in support of or in opposition to
the claim of privilege are in conflict, the determination of whether the evidence supports
one conclusion or the other is for the trial court, and a reviewing court may not disturb
such finding if there is any substantial evidence to support it.” ’ ” (DP Pham LLC v.
Cheadle, supra, 246 Cal.App.4th at p. 664.) “We presume the trial court knew and
properly applied the law absent evidence to the contrary.” (McDermott, supra,
10 Cal.App.5th at p. 1103.) A trial court is not required to make any specific findings to
support its ruling. (Ibid.) We “review the court’s order by inferring it made all favorable
findings that are supported by substantial evidence.” (Ibid.)
In this case, the trial court concluded that the Brown email was privileged because
Brown was an attorney representing Caltrans, the email involved legal advice or
information, and the nature of the relationship between Brown and Duncan was that of a
Caltrans attorney obtaining information relevant to litigation from a Caltrans employee.
16
Substantial evidence supports these determinations. It is undisputed that Brown was an
attorney for Caltrans. Brown stated that he sent the email to investigate Johnson’s claims
and defend Caltrans in that litigation. Brown also said that he intended his email to be
privileged and confidential. The email bore a confidentiality notice. And the only
relationship between Brown and Duncan stemmed from Brown’s need to defend his
client in litigation brought by one of Duncan’s supervisees. These facts satisfied
Caltrans’s prima facie burden of showing the communication was made in the course of
an attorney-client relationship. (See Clark, supra, 196 Cal.App.4th at p. 51 [substantial
evidence of privilege shown by declarations stating documents were sent by company
employee to company attorney].)
The burden then shifted to Johnson to show that the Brown email was not
confidential or was otherwise unprivileged. (Costco, supra, 47 Cal.4th at p. 733.)
Johnson claims that the “dominant purpose” of the email was not to advance Caltrans’s
legal interests but was instead to impugn him. The trial court rejected this argument,
reasoning that the claim was “completely unsupported by any evidence.” It concluded
that the more likely explanation was that Brown intended to obtain “relevant information
from Duncan.” The trial court had the discretion to resolve this factual dispute, and the
record amply supports its finding.
Johnson additionally argues that communications with Duncan were not covered
by the attorney-client privilege because Duncan was only a low-level employee and
Caltrans could not unilaterally create an attorney-client relationship. In Upjohn, the
United States Supreme Court explained that the privilege may extend to communications
with corporate employees, saying, “Middle-level—and indeed lower-level—employees
can, by actions within the scope of their employment, embroil the corporation in serious
legal difficulties, and it is only natural that these employees would have the relevant
information needed by corporate counsel if he is adequately to advise the client with
respect to such actual or potential difficulties.” (Upjohn Co. v. United States, supra,
17
449 U.S. at p. 391; see also Zurich American Ins. Co. v. Superior Court (2007)
155 Cal.App.4th 1485, 1498.) Johnson incorrectly reads this to mean that only those
employees who embroil their employers in serious legal difficulties fall within the
protection of the privilege. The Supreme Court further explained that it is important for
corporate lawyers to be able to exchange information with lower-level employees to
adequately represent their corporate clients. (Upjohn Co. v. United States, supra,
449 U.S. at pp. 391-393.) Upjohn does not require lower-level employees to be the
source of tortious behavior to be covered by the privilege. (Id. at pp. 391, 394.)
Johnson also points to D. I. Chadbourne, supra, 60 Cal.2d at pages 735-739, in
support of his claim that the Brown email was not privileged. In that case, our state
Supreme Court set out various guidelines for determining whether a communication from
an employee to an entity’s lawyer is protected. The guidelines differentiate situations
where the employee is a named defendant, an independent witness, or a witness whose
connection “grows out of his employment,” among other examples. (D. I. Chadbourne,
at pp. 736-737.) As an initial matter, the present case involves a communication from an
attorney to an employee, not from an employee whose status within the corporation may
be unclear. In any event, Johnson never explains why Duncan would qualify only as an
“independent witness” or why Brown’s communication with him would not fall within
the ordinary course of Caltrans activity. (Id. at p. 737.) To the contrary, the only reason
for Brown to contact Duncan was because of Duncan’s position at Caltrans as Johnson’s
supervisor. In addition, D. I. Chadbourne explains that the corporate employer’s
“dominant purpose” when directing an employee to make a statement controls its
privileged status, and “it is the intent of the person from whom the information emanates
that originally governs its confidentiality (and hence its privilege).” (Ibid.; see Costco,
supra, 47 Cal.4th at p. 735.) As explained above, there was adequate evidence to
conclude that Caltrans’s purpose, as carried out by Brown, was to investigate Johnson’s
claims for the purpose of litigation, and both Caltrans and Brown intended the
18
communication to be confidential. Johnson’s conclusory allegation that the purpose of
the email was to “mislead and damage” him is inadequate to controvert the trial court’s
findings.
Johnson further contends that the trial court should have conducted an in camera
review of the Brown email. This argument fails because, with exceptions not relevant
here, a “presiding officer may not require disclosure of information claimed to be
privileged . . . in order to rule on the claim of privilege.” (Evid. Code, § 915, subd. (a);
Costco, supra, 47 Cal.4th at pp. 737-739.)
Finally, we reject Johnson’s assertion, relying on Koo v. Rubio’s Restaurants, Inc.
(2003) 109 Cal.App.4th 719, that Caltrans is now attempting to unilaterally create a
“ ‘sham’ ” attorney-client relationship. In Koo, a class of restaurant managers sued the
corporate defendant for wage and hour claims. (Id. at p. 723.) Defense counsel made a
statement in a declaration that his law firm represented all the class members as well as
the defendant, and the plaintiff moved to disqualify defense counsel based on this
apparent conflict of interest. (Id. at pp. 725-726.) Considering the distinction between
representing the class members in their official capacities “as representatives of the
corporation” versus in their individual capacities as current and prospective class
members, the appellate court concluded that defense counsel could not “single-handedly
create an attorney-client relationship” with “the managers in their individual capacities.”
(Id. at p. 730.) On the other hand, the statement that defense counsel represented the
managers in “their representative capacities, as opposed to their individual capacities,
was not entirely unfounded,” because case law established that an attorney for a
corporation represents both the corporation and its officers in their representative
capacities. (Id. at p. 731.) The court noted, for instance, that plaintiff’s counsel would be
unable to have ex parte communications with company employees outside of the class
action context, because those employees would have an attorney-client relationship with
company counsel in their representative capacities. (Id. at p. 731, fn. 5.)
19
Here, Caltrans’s counsel does not claim to represent Duncan in an individual
capacity. His role in the case is limited to his position as a supervisor for Caltrans, and
Brown communicated with Duncan for the purpose of representing Caltrans. Koo is
therefore inapposite.
B.
Johnson also claims that Caltrans waived the attorney-client privilege, because
Duncan gave the email to Johnson, Caltrans disclosed “a significant part of the
communications,” and Caltrans delayed in pursuing a motion for protective order. We
find no merit in these assertions.
A party may waive the attorney-client privilege over a “communication protected
by the privilege if any holder of the privilege, without coercion, has disclosed a
significant part of the communication or has consented to disclosure made by anyone.”
(Evid. Code, § 912, subd. (a); McDermott, supra, 10 Cal.App.5th at p. 1101.) A
“significant part” of a communication means the party has revealed the “specific content”
of or “substantive information” concerning the communication. (Southern Cal. Gas
Co. v. Public Utilities Com. (1990) 50 Cal.3d 31, 49; see also Mitchell v. Superior Court
(1984) 37 Cal.3d 591, 603 [no waiver where admission that client discussed matter with
attorney “did not disclose any of the actual substance or content” of the
communications].) Consent may be shown by “any statement or other conduct of the
holder of the privilege indicating consent to the disclosure, including failure to claim the
privilege in any proceeding in which the holder has legal standing and the opportunity to
claim the privilege.” (Evid. Code, § 912, subd. (a).) Only the attorney’s client, the
holder of the privilege, may waive the privilege. (Evid. Code, § 953; McDermott, at
p. 1101.) In the case of a corporation, the ability to waive the privilege “belongs to
corporate management and is normally exercised by the corporation’s officers and
directors.” (Melendrez v. Superior Court (2013) 215 Cal.App.4th 1343, 1353-1354;
Commodity Futures Trading Com. v. Weintraub, supra, 471 U.S. at p. 348; see also
20
Wood v. Superior Court (2020) 46 Cal.App.5th 562, 576.) “The privilege is not waived
when the client’s agent discloses a privileged communication without the client’s
authorization.” (DP Pham LLC v. Cheadle, supra, 246 Cal.App.4th at p. 668.)
Waiver “does not include accidental, inadvertent disclosure of privileged
information by the attorney” for the privilege holder. (State Fund, supra, 70 Cal.App.4th
at p. 654.) To assess waiver, a court must consider the privilege holder’s subjective
intent. (Id. at pp. 653-654.) The disclosing party’s “own characterization of its intent is
not dispositive,” however. (Ardon v. City of Los Angeles (2016) 62 Cal.4th 1176, 1190;
see also McDermott, supra, 10 Cal.App.5th at p. 1101.) Rather, the court should weigh
“[o]ther relevant considerations,” including “the precautions the holder took to maintain
the privilege and the promptness with which the holder sought return of the inadvertently
disclosed document.” (McDermott, at p. 1102.) “The law does not require that the holder
of the privilege take ‘strenuous or Herculean efforts’ to resist disclosure.” (Regents of
University of California v. Superior Court (2008) 165 Cal.App.4th 672, 683.) The
question in assessing waiver is thus whether the holder of the privilege has pursued
reasonable means to preserve the confidentiality of the information. (Id. at p. 681.)
Duncan’s disclosure of the email to Johnson did not waive the privilege. As noted
above, the privilege holder was Caltrans, as represented by its management. Nothing
suggests Duncan fell within this group. Nor is there any evidence that Caltrans
authorized Duncan to disclose the email. On the contrary, contemporaneous
communications from Caltrans’s counsel indicated that Duncan did “not have the
authority to waive attorney-client privilege on behalf of [Caltrans].”
Contrary to Johnson’s contention, Caltrans’s disclosure of the confidentiality
notice from the footer of Brown’s email and its general description of the nature of
Brown’s communication to Duncan in its motion for protective order also do not
constitute a revelation of a “significant part” of the email. (Southern Cal. Gas Co. v.
21
Public Utilities Com., supra, 50 Cal.3d at p. 49.) Neither disclosed the “specific content”
or “substantive information” of the communication. (Ibid.)
Substantial evidence also supports the trial court’s conclusion that Caltrans did not
consent to the disclosure by failing to pursue reasonable means to preserve the
confidentiality of the Brown email. The same day Shepardson informed Caltrans he had
the Brown email, Caltrans’s counsel notified him that the email was privileged. Caltrans
unequivocally invoked the privilege and asked Johnson and Shepardson to “delete or
destroy the email.” That exchange was followed by additional meet-and-confer
communications between Shepardson and Sims. When those communications did not
resolve the matter, Sims advised Shepardson on February 3, 2022 that Caltrans would be
seeking a protective order if Johnson and Shepardson did not stop disseminating the
email and destroy their copies of it.
We see nothing in the record or in case law to support Johnson’s current
contention that Caltrans waived the privilege because it did not “immediately file a
motion for protective order” after receiving notice that the Brown email had been
disclosed. A same-day email invoking the privilege and requesting Johnson and
Shepardson delete their copies of the Brown email qualifies as a reasonable and good
faith measure taken to protect the Brown email’s confidentiality, particularly because
Caltrans was not on notice that Johnson and Shepardson intended to show the email to
others until January 28, 2022.
After receiving that notice, Caltrans escalated its demands. Sims’s February 3,
2022 meet-and-confer letter not only repeated Caltrans’s demand to delete the email but
also asked Shepardson to confirm in writing the identities of the individuals to whom he
had shown the email. At that point, trial was set for April 18, 2022. The parties engaged
in more correspondence before the trial court stayed the case on February 17, 2022; the
stay remained in place for the next month and a half. Sims filed a notice that he would be
unavailable between July 1, 2022 and August 31, 2022, although it is unclear whether he
22
played any role in drafting the motion for protective order. Caltrans filed its motion for
protective order on August 18, 2022. While it is true that Caltrans could have acted more
expeditiously in filing its motion, its failure to do so does not demonstrate inappropriate
delay, considering the shifting trial dates, the evolving actions Johnson and Shepardson
took to further disseminate the email, and the prolonged meet-and-confer
communications.
Johnson cites a number of cases, but they do not persuade us that Caltrans waived
its privilege here. Both People v. Perry (1972) 7 Cal.3d 756, 783, overruled by People v.
Green (1980) 27 Cal.3d 1, and Mize v. Atchison, T. & S. F. Ry. Co. (1975) 46 Cal.App.3d
436, 449 support the proposition that the attorney-client privilege can be waived if the
holder does not object to disclosure of the privileged material, a proposition that Caltrans
does not dispute. United States v. De La Jara (9th Cir. 1992) 973 F.2d 746, 749-750 and
AHF Cmty. Dev., LLC v. City of Dallas (N.D. Tex. 2009) 258 F.R.D. 143, 149 involved
instances of parties failing to take steps to recover or object to the use of privileged
material; the former involved a seized letter from a defendant to his attorney, and the
latter involved documents marked as exhibits in a deposition. In this case, by contrast,
Caltrans consistently objected to the disclosure of the email.
We are also unpersuaded by Johnson’s further claim that Caltrans waived the
privilege by failing to bring legal action against Johnson’s experts to whom Shepardson
provided the email. Johnson cites no legal authority for this proposition. And in any
event, Caltrans continuously and consistently sought to recover the email, including by
demanding that Shepardson delete or return all copies of the email, which would
reasonably be understood to include those copies Johnson and Shepardson distributed to
the experts.
C.
Finally, we reject Johnson’s invocation of the crime-fraud exception. The
attorney-client privilege does not apply “if the services of the lawyer were sought or
23
obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.” (Evid.
Code, § 956, subd. (a).) “ ‘To invoke the Evidence Code section 956 exception to the
attorney-client privilege, the proponent must make a prima facie showing that the
services of the lawyer “were sought or obtained” to enable or to aid anyone to commit or
plan to commit a crime or fraud.’ ” (State Farm Fire & Casualty Co. v. Superior Court
(1997) 54 Cal.App.4th 625, 643; see Wells Fargo Bank v. Superior Court (2000)
22 Cal.4th 201, 213, fn. 4.) A “mere assertion of fraud is insufficient.” (BP Alaska
Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1262.) We review a
trial court’s finding on the crime-fraud exception for substantial evidence. (State Farm
Fire & Casualty Co. v. Superior Court, supra, at p. 645.)
The trial court found that Johnson had “failed to adduce facts” supporting any of
his accusations of criminal or fraudulent behavior. In this court, Johnson’s allegations of
misconduct by Brown and Caltrans cite only to his own legal arguments filed in the trial
court. To the extent that Johnson’s trial court filings cite to Shepardson’s declaration
before the trial court, the declaration contains only conclusory statements and
accusations. These are bare assertions of fraud and do not establish a prima facie case
that the crime-fraud exception applies.
III.
We turn now to Johnson’s contention that the trial court erred when it granted
Caltrans’s motion to disqualify Shepardson and three expert witnesses. We reject this
claim because the record supports the trial court’s conclusion that Shepardson breached
his ethical obligations by using and disseminating the Brown email. We further conclude
that the trial court acted well within its discretion in determining that this conduct, and
the resulting risk of harm to Caltrans and the integrity of the proceedings, warranted
disqualification.
24
A.
The “seminal California decision defining a lawyer’s ethical obligations upon
receiving another party’s attorney-client privileged materials” is State Fund, supra,
70 Cal.App.4th 644. (McDermott, supra, 10 Cal.App.5th at p. 1106.) State Fund held:
“When a lawyer who receives materials that obviously appear to be subject to an
attorney-client privilege or otherwise clearly appear to be confidential and privileged and
where it is reasonably apparent that the materials were provided or made available
through inadvertence, the lawyer receiving such materials should refrain from examining
the materials any more than is essential to ascertain if the materials are privileged, and
shall immediately notify the sender that he or she possesses material that appears to be
privileged. The parties may then proceed to resolve the situation by agreement or may
resort to the court for guidance with the benefit of protective orders or other judicial
intervention as may be justified.” (State Fund, supra, 70 Cal.App.4th at pp. 656-657.)2
In Rico, supra, 42 Cal.4th 807, 817-818, our state Supreme Court approved the
“State Fund rule” and extended it to documents covered by the work product privilege,
describing the rule as a “fair and reasonable approach.” (See also Ardon v. City of Los
Angeles, supra, 62 Cal.4th at p. 1187 [California Supreme Court “embraced the State
Fund holding in Rico”].) Rico described the State Fund rule as “an objective standard”
that asks “whether reasonably competent counsel, knowing the circumstances of the
2 These requirements were codified in rule 4.4 of the California State Bar Rules of
Professional Conduct, which provides: “Where it is reasonably apparent to a lawyer who
receives a writing relating to a lawyer’s representation of a client that the writing was
inadvertently sent or produced, and the lawyer knows or reasonably should know that the
writing is privileged or subject to the work product doctrine, the lawyer shall: [¶]
(a) refrain from examining the writing any more than is necessary to determine that it is
privileged or subject to the work product doctrine, and [¶] (b) promptly notify the
sender.” The comments to the rule further state, “If a lawyer determines this rule applies
to a transmitted writing, the lawyer should return the writing to the sender, seek to reach
agreement with the sender regarding the disposition of the writing, or seek guidance from
a tribunal.” (Rules Prof. Conduct, rule 4.4, com. [1].)
25
litigation, would have concluded the materials were privileged, how much review was
reasonably necessary to draw that conclusion, and when counsel’s examination should
have ended.” (Rico, at p. 818.)
Once an attorney’s examination shows that a document was transmitted between
an attorney representing an entity-client and an officer or employee of that client, “that
examination would suffice to ascertain the materials are privileged, and any further
examination would exceed permissible limits.” (Clark, supra, 196 Cal.App.4th at p. 53.)
The opposing party’s claim of privilege will also trigger the receiving attorney’s State
Fund duties. (McDermott, supra, 10 Cal.App.5th at pp. 1112, 1116 [objections of
opposing counsel “constitute substantial evidence that [the receiving law firm] reasonably
should have realized the [document] was an inadvertently disclosed, privileged document
subject to the State Fund rule”].)
The consequence of the receiving counsel’s failure to comply with his or her State
Fund obligations can be disqualification, “assuming other factors compel” that remedy.
(State Fund, supra, 70 Cal.App.4th at p. 657.) A trial court “may not order
disqualification ‘ “simply to punish a dereliction that will likely have no substantial
continuing effect on future judicial proceedings.” ’ ” (McDermott, supra, 10 Cal.App.5th
at p. 1120.) But an “affirmative showing of existing injury from the misuse of privileged
information is not required.” (Ibid.) Rather, the “ ‘significant question’ ” is whether
there is a “ ‘genuine likelihood’ ” that the receiving counsel’s review and use of the
inadvertently disclosed materials will “ ‘affect the outcome of the proceedings before the
court.’ ” (Ibid.; Clark, supra, 196 Cal.App.4th at p. 55.) “ ‘Thus, disqualification is
proper where . . . there is a reasonable probability counsel has obtained information the
court believes would likely be used advantageously against an adverse party during the
course of the litigation.’ ” (McDermott, at p. 1120; see also Rico, supra, 42 Cal.4th at
p. 819 [disqualification proper where receiving party’s use of document placed opposing
party “at a great disadvantage”].) Disqualification is also proper when an attorney’s
26
continued representation “would undermine the integrity of the judicial process.”
(Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1205.)
We conclude the trial court properly disqualified Shepardson and the three experts
after finding that State Fund’s obligations were not satisfied. First, the trial court
correctly determined that Shepardson breached his State Fund obligations after he
received the Brown email. When he received the email, Shepardson properly notified
Caltrans. (State Fund, supra, 70 Cal.App.4th at p. 657.) But the record supports the trial
court’s conclusion that his actions thereafter fell short of what State Fund requires. After
receiving the email, and especially after Caltrans unequivocally asserted the privilege
hours after learning of the disclosure, Shepardson was not permitted to examine the email
any further, much less distribute the email to other witnesses or use it to formulate case
strategy, pending an agreement between the parties or judicial intervention. (Id. at
pp. 656-657.) He nonetheless proceeded to do so, providing the email to Williamson,
Duffy, and Simms, as well as at least five other individuals. He also announced his
intention to use the email in the litigation, telling Caltrans he would be offering it into
evidence at trial.
Second, Shepardson continued to use the Brown email after the trial court issued a
protective order. The trial court’s order determined that the Brown email was a protected
attorney-client communication and forbade Shepardson and Johnson from further
disseminating the email. Yet the trial court found that Shepardson “continued to refer to,
disclose and discuss the Brown email.” Substantial evidence in the record supports this
finding. Shepardson also expressed his continued intent to offer evidence of the email at
trial, asserting that the trial court’s silence on the issue of witness testimony about the
email meant that he was permitted to discuss the email and its contents with witnesses.
Third, the record supports the conclusion that there was a reasonable probability
that Shepardson and the experts would continue to use the Brown email, or the
information it contained, to unfair advantage against Caltrans. As noted, the trial court
27
found that Shepardson continued to use and discuss the email, even after the court
determined the email was covered by the attorney-client privilege; he also declared his
intention to solicit testimony about it at trial. At the same time, he offered shifting and
uncertain assurances about the status of the email. In his April 2023 compliance
declarations, for instance, he stated he had “removed all images of the Brown email that
[he was] aware of, from hardcopy files, computers, phones and any other electronic
devices.” But none of the experts noted any such destruction of their copies of the email;
and Duffy and Simms were under the impression that Caltrans had not sought the return
or destruction of the email, saying Caltrans had “not served me with any motions seeking
to return the email.” This evidence supported the trial court’s concern that not all the
images of the Brown email about which counsel was aware had been removed or
destroyed.
As for the experts, Williamson offered shifting explanations about whether the
Brown email would play a role in his testimony. In his first declaration, he said it “would
be difficult, and perhaps impossible, to give testimony . . . without consideration of the
damaging email,” but then later stated the email had “lessened in importance” and he
could testify without it. Simms also stated that although she had not extensively
reviewed the email, she “did find that it appeared retaliatory.” In view of this record,
substantial evidence supports the trial court’s conclusion that there was a distinct
probability that the email would be used to unfair advantage. The trial court did not
abuse its discretion when it found similarly as to the three identified experts.
We reject Johnson’s argument, relying on McDermott, supra, 10 Cal.App.5th
1083, that the trial court held Shepardson’s actions to the wrong State Fund standard and
that his “only duty was to notify opposing counsel of the [e]-mail,” after which he was
presumably free to use or disclose the email, pending action by Caltrans to protect it. In
McDermott, the appellate court interpreted State Fund as “establishing two standards,
with each one applying to slightly different situations”: one, “when an attorney receives
28
materials that obviously or clearly appear to be privileged,” and the other, “when an
attorney ascertains that he or she received materials that are not obviously or clearly
privileged, but nonetheless may be privileged materials that were inadvertently
disclosed.” (Id. at pp. 1108-1109.) Whether the Brown email was “obviously or clearly”
privileged or “may” have appeared privileged upon receipt by Shepardson, Caltrans
immediately invoked the privilege when notified, eliminating any question as to whether
the holder asserted privilege over the document. (Id. at pp. 1108-1109, 1115.)
But even if the email was only potentially privileged, we disagree with Johnson
that McDermott permitted him to use or disclose the email. While McDermott concluded
that the receipt of “materials that are not obviously or clearly privileged . . . triggers a
more limited response” than the receipt of “materials that obviously or clearly appear to
be privileged,” it does not state that a party who receives documents that are not clearly
privileged may do whatever they wish with the documents after notifying the privilege
holder. (McDermott, supra, 10 Cal.App.5th at pp. 1108-1109.) To the contrary,
McDermott explained that “[a]llowing opposing counsel to avoid their State Fund
obligations any time they can fashion a colorable argument for overcoming the privilege
would create an exception that would swallow the State Fund rule. As State Fund and
the other cases explain, an attorney’s obligation is to review the materials no more than
necessary to determine whether they are privileged, and then notify the privilege holder’s
counsel. At that point, the parties may confer about whether the material is privileged
and whether there has been a waiver. If the parties are unable to reach an agreement
either side may seek guidance from the trial court. [Citations.] The attorney receiving
the material, however, is not permitted to act as judge and unilaterally make that
determination.” (Id. at p. 1113.) Once Caltrans asserted that the email was privileged,
Shepardson was obligated to refrain from using it, absent agreement between the parties
or a judicial resolution, even if he believed there was some basis for the email to fall
outside the privilege.
29
The trial court’s finding that Shepardson failed to comply with his State Fund
obligations and the protective order is supported by substantial evidence. The trial court
committed no abuse of discretion in disqualifying Shepardson and the experts after those
obligations were breached.
B.
Johnson raises a variety of other arguments contesting the trial court’s
disqualification order, none of which is persuasive.
Johnson first contends that Caltrans unduly delayed in filing its motion to
disqualify for tactical reasons and that it should have filed the motion as soon as it
learned the Brown email had been disclosed. To waive a motion to disqualify counsel
based on delay, the delay must be “extreme or unreasonable.” (Liberty National
Enterprises, L.P. v. Chicago Title Ins. Co. (2011) 194 Cal.App.4th 839, 845.) The
ensuing prejudice from the delay must also be extreme: “Even if tactical advantages
attend the motion [f]or disqualification, that alone does not justify denying an otherwise
meritorious motion.” (In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572,
599.)
As we have already concluded, Caltrans did not unreasonably delay in filing the
motion for protective order. Caltrans also did not unreasonably delay in filing the motion
for disqualification after the trial court issued the protective order. The trial court issued
the protective order on January 3, 2023. That order gave Johnson and Shepardson
20 days to file declarations attesting to their compliance. One week later, this court
stayed the case after Johnson filed a petition for writ of mandate, which was denied.
After the stay was lifted, Johnson and Shepardson did not file the required declarations,
and Caltrans sent a letter requesting compliance with the order by April 4, 2023. On
April 3, 2023, Johnson filed another petition for writ of mandate with this court, which
was again denied. Caltrans then filed a motion to enforce the protective order on
April 17, 2023; Johnson and Shepardson filed the required declarations shortly thereafter.
30
The hearing remained on calendar for June 6, 2023, and Caltrans identified deficits in the
declarations. The trial court instructed the parties to meet and confer about the contents
of the declarations. The parties continued to meet and confer over the course of June,
during which time Shepardson stated that he would be soliciting testimony about the
Brown email at trial and could communicate with witnesses about the contents of the
email. On June 30, 2023, Caltrans filed the motion to disqualify Shepardson and the
expert witnesses.
None of these facts suggests an extreme or unreasonable delay on the part of
Caltrans. After obtaining the protective order, Caltrans repeatedly attempted to obtain
Johnson’s and Shepardson’s compliance, including by filing a motion to enforce the
protective order after efforts at informal resolution failed. After receiving the compliance
declarations and meeting and conferring with Shepardson, it became clear that
Shepardson had disseminated the Brown email and its contents and still intended to use
the email to his client’s advantage at trial. At that point, Caltrans filed the motion to
disqualify Shepardson. Notably, Caltrans also requested that the motion be heard on
shortened time, given the pending trial date; Johnson opposed the request. The record
demonstrates that any delays in filing the motion were the result of the prolonged meet-
and-confer process, not because Caltrans was attempting to delay the motion for tactical
advantage.
We likewise reject Johnson’s argument that the trial court’s order contained
insufficient analysis of the prejudice Johnson would suffer as a result of Shepardson’s
disqualification. As an initial matter, Johnson situates this argument in a portion of his
opening brief devoted to the assertion that Caltrans tactically delayed the filing of its
motion. He makes his prejudice argument with a series of conclusory assertions that cite
to the entire trial court order and does not provide any analysis explaining why the
argument warrants reversal. “An appellant must ‘[s]tate each point under a separate
heading or subheading summarizing the point, and support each point by argument and, if
31
possible, by citation of authority.’ [Citations.] Failure to provide proper headings forfeits
issues that may be discussed in the brief but are not clearly identified by a heading.”
(Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179.)
In any event, we see no error. A trial court is not required to discuss, at any length,
every factor at issue in a disqualification motion. (Responsible Citizens v. Superior Court
(1993) 16 Cal.App.4th 1717, 1734, fn. 6 [“A statement of decision . . . is not required for
disqualification motions”].) And we presume the trial court knew and applied the law
correctly, absent an indication to the contrary. (McDermott, supra, 10 Cal.App.5th at
p. 1103.)
Moreover, the record supports the trial court’s implicit finding that any prejudice
to Johnson was outweighed by contrary considerations. The trial court’s “paramount
concern must be to preserve public trust in the scrupulous administration of justice and
the integrity of the bar.” (People ex rel. Dept. of Corporations v. SpeeDee Oil Change
Systems, Inc., supra, 20 Cal.4th 1135, 1145.) A client’s right to select his or her own
counsel “must yield to ethical considerations,” such as “[p]rotecting the confidentiality of
communications between attorney and client.” (Id. at pp. 1145, 1146.) As detailed
above, substantial evidence supports the conclusion that the Brown email was a
privileged attorney-client communication, that Shepardson violated his duties as to that
communication, and that there was a reasonable probability he would use the
communication for unfair advantage. Under these circumstances, the trial court
appropriately exercised its discretion in ordering disqualification.
Johnson further argues that there is a “rule” that disqualification is unwarranted
when the disclosed document is received from the disqualified attorney’s own client
because the client could simply disclose the document to any future attorney, frustrating
the goal of disqualification. As with the previous argument, Johnson’s brief does not
include any analysis or explanation regarding this claim. In any case, Johnson’s
argument was rejected in Militello v. VFARM 1509 (2023) 89 Cal.App.5th 602, 621-622.
32
There, the appellate court observed that while it is true that courts “cannot effectively
police what a client, after reading or hearing another party’s confidential
communications, chooses to tell his or her lawyer,” it is an entirely different matter to
permit an attorney who has improperly used confidential material to continue with the
representation. (Ibid.) To allow such representation to continue “would undermine the
public’s trust in the fair administration of justice and the integrity of the bar.” (Id. at
p. 622.) We agree with this conclusion.
Disqualification of a party’s chosen counsel may impose hardships on the party,
who must then seek new counsel in an already pending case. But a party’s choice of
counsel may be outweighed by a court’s overarching duty to preserve the integrity of the
judicial process, through both compliance with ethical rules and the maintenance of
public confidence in the proceedings. (Comden v. Superior Court, supra, 20 Cal.3d at
p. 915.) In this case, Shepardson’s failure to comply with his ethical duties through his
continued use of confidential material created a substantial risk of undue prejudice and
risked undermining the integrity of the proceedings. We therefore have little difficulty in
concluding the trial court did not abuse its discretion when it disqualified him.
33
DISPOSITION
The trial court’s order disqualifying Shepardson and the expert witnesses
Williamson, Duffy, and Simms is affirmed. Caltrans shall recover its costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(1) & (2).)3
/s/
FEINBERG, J.
We concur:
/s/
HULL, Acting P. J.
/s/
WISEMAN, J.*
3 In the conclusion of his opening brief, Johnson includes a single sentence also asking
this court to reassign the case to another judge under Code of Civil Procedure
section 170.1, subdivision (c). The request is not set forth under a separate heading or
accompanied by any argument, and we do not consider it. (See Cal. Rules of Court,
rule 8.204(a)(1)(B); Swallow v. California Gambling Control Com. (2022)
77 Cal.App.5th 1037, 1041, fn. 3.)
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
34