People v. Superior Court (Bauman & Rose)

Page 734

44 Cal.Rptr.2d 734

37 Cal.App.4th 1757, 95 Cal. Daily Op. Serv. 7018,

95 Daily Journal D.A.R. 11,967

The PEOPLE, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent BAUMAN & ROSE et al., Real Parties in Interest.

B085710.

Court of Appeal, Second District, Division 4, California.

Aug. 31, 1995.

Rehearing Denied Sept. 20, 1995.

Review Denied Nov. 30, 1995.

Gil Garcetti, Dist. Atty., Brent Riggs, Diana L. Summerhayes and Brentford J. Ferreira, Deputy Dist. Attys., for petitioner.

No appearance for respondent.

Michaelson & Levine, Alvin S. Michaelson, Janet I. Levine and Eric Honig, Los Angeles, for Bauman and Rose, real party in interest.

Kaplan, Kenegos & Kadin and Joan Kenegos, Beverly Hills, for Denise Breakman, real party in interest.

Richard A. Moss, Los Angeles, for Donald Lake, Howard Levine and Law Offices of Lake and Levine, real parties in interest.

ARIEIGH M. WOODS, Presiding Justice.

This purported appeal is brought by the Los Angeles District Attorney on behalf of the People from an order of the superior court sealing certain documents seized during a search of respondents' law offices pursuant to a valid search warrant. The putative respondents are the law offices of Bauman & Rose, Lake and Levine and Donald Lake and Howard Levine, and Denise Breakman.

Preliminarily, we must address the issue of appealability. The district attorney urges us to deem respondents' motions to seal the documents seized from their offices to constitute a special proceeding as to which the court's order granting that request is a final judgment and therefore appealable. (Code Civ.Proc., § 1064 [a "judgment in a special proceeding is the final determination of the rights of the parties therein."].) The district attorney, however, fails to cite any relevant authority that supports this theory of appealability. The cases on which he relies not only involve completely different circumstances than those presented here but have in common the fact that they were orders made after a judgment. (In re De La O (1963) 59 Cal.2d 128, 28 Cal.Rptr. 489, 378 P.2d 793 [commitment after conviction to California Rehabilitation Center under former Penal Code section 6450]; Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 32 Cal.Rptr. 288 [order to tax costs made after entry of judgment]; People v. Munoz (1973) 31 Cal.App.3d 87, 107 Cal.Rptr. 451 [commitment after conviction under Welfare and Institutions Code section 3051 for narcotic addiction].) In the case before us, there is, of course, no underlying judgment; nor does the order satisfy the requirement of Code of Civil Procedure section 1064 of being a "final determination" of the rights of the parties involved in the matter. Accordingly, there being no appealable order, we must dismiss the appeal. (Code Civ.Proc., § 904.1.)

In order to reach the important issue presented by this case, we exercise our discretion to treat the appeal as a petition for writ of mandate. (G.E. Hetrick & Associates, Inc. v. Summit Construction & Maintenance Co. (1992) 11 Cal.App.4th 318, 326, fn. 5, 13 Cal.Rptr.2d 803.) Henceforth, we refer to the district attorney as petitioner and the lawyers and law firms collectively as real parties. We proceed to the merits of the case.

On October 4, 1993, Judge Lance Ito of the Los Angeles Superior Court issued search warrant number 35941 which commanded the search of 31 locations that were all either legal or medical offices. Among the locations searched were real parties' offices. Pursuant to Penal Code section 1524, subdivision (c), special masters were appointed for some of the locations. A special master was appointed for Breakman's office because she shared it with an attorney who was not a target of this criminal investigation. No special masters were appointed for the search of the offices of the other real parties herein. ¹ The purpose of the investigation was to uncover evidence of insurance fraud. Among the items as to which the search warrant authorized seizure were numerous client files.

The searches were conducted on October 6 and 7, 1993. On October 6, 1993, real parties filed motions in which they requested that the court seal the documents seized from their offices until a hearing could be conducted to determine the applicability of the attorney-client privilege. Petitioner opposed the motions on the grounds that under Penal Code section 1524, subdivision (c), only non-suspect lawyers were entitled to such hearing and Judge Ito's issuance of the search warrant as to real parties' offices without appointment of a special master was a finding that real parties were reasonably suspected of engaging in criminal activity and not entitled to the special master procedure.

On October 12, 1993, a hearing was conducted on real parties' motions. On January 14, 1994, Judge Ito issued a lengthy minute order in which he posed the question before him as whether "the holder of a professional privilege who is reasonably suspected of engaging or having engaged in criminal activity [is] entitled to a hearing and an in camera review before the seized items are examined by law enforcement." The judge summarized petitioner's position as follows: "The District Attorney contends that it is entitled to free and unfettered access to the items seized, that in issuing the search warrant the court has made a determination that there is probable cause to believe criminal acts have been committed thereby making the Special Master and hearing procedure of Penal Code Section 1524(c) inapplicable." In rejecting this argument, the court relied on Deukmejian v. Superior Court (1980) 103 Cal.App.3d 253, 260, 162 Cal.Rptr. 857, in which Division Three of this court observed that "[t]he mere fact [an] ... attorney[ ][is] charged with crimes creates a distinction without a difference when we are dealing with considerations affecting privileged material. An attorney suspected of criminal activity should have the same concerns about the confidentiality of files containing privileged matter as an innocent third party attorney who allegedly possesses and controls files containing evidence of criminal conduct." Judge Ito then concluded that the weight of "statutory authority, both in the Penal Code and Evidence Code, plus the supporting case law supports the objectors' position that they are entitled to a hearing and an in camera review before the items seized are turned over to law enforcement." He ordered real parties to make application to the court for an order declaring the privilege to apply to whatever items they specified in their application.

Evidently, the January 14 order was not served on either petitioner or real parties until April 25, 1994. On that date, Judge Ito made the January order effective nunc pro tunc to April 25. On May 10, 1994, real parties Lake and Levine filed an application for an in camera review of the documents seized from their law office to determine if any of them were privileged. In response, petitioner filed a request for clarification of the court's nunc pro tunc order of April 25 as to whether the court's order required sealing of all the documents as to which the privilege might be claimed. On June 22, 1994, the court ordered that all seized documents be sealed until further order of the court.

We affirm the trial court's ruling and deny the petition. ²

The initial issue in this case is whether an attorney suspected of criminal activity is entitled to an in camera hearing on the applicability of the attorney-client privilege to client files seized from the attorney's office pursuant to a valid search warrant or if the privilege has been waived on grounds of the crime/fraud exception to the privilege. (Evid.Code, § 956.) ³

We agree with petitioner that special master procedure set forth in Penal Code section 1524, subdivision (c) (henceforth section 1524) does not apply to attorneys suspected of criminal activity. (PSC Geothermal Services Co. v. Superior Court (1994) 25 Cal.App.4th 1697, 1702, fn. 4, 31 Cal.Rptr.2d 213 ["If the attorney himself is a suspect in criminal activity, then the special master provision does not apply. [Citation.]"].) We disagree, however, with petitioner's further claim that this statutory omission precludes a suspect attorney from ever asserting the privilege on behalf of a client whose file has been seized pursuant to a valid search warrant. Nothing in the language of section 1524 or its legislative history purports to abrogate the attorney-client privilege between a suspect attorney and his or her client. Rather, section 1524 was intended to provide special protections to four specified classes of privilege holders, lawyers, doctors, psychotherapists and clerics, when, pursuant to a valid search warrant, a search is conducted on premises owned or controlled by them for evidence of crime but they themselves are not suspected of any criminal activity. It does not reach the issue of the assertion of the attorney-client privilege by a suspect attorney.

Subdivision (c) of section 1524 was enacted by the Legislature in response to Zurcher v. Stanford Daily (1978) 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525. In Zurcher, the Supreme Court held that a search of the offices of a university newspaper, which was not involved in any criminal activity, for photographs of demonstrators who had assaulted police officers did not offend the Fourth Amendment's ban against unreasonable searches and seizures. The court concluded: "[T]he Amendment has not been a barrier to warrants to search property on which there is probable cause to believe that fruits, instrumentalities, or evidence of crime is located, whether or not the owner or possessor of the premises to be searched is himself reasonably suspected of complicity in the crime being investigated." (Id. at pp. 549-550, 98 S.Ct. at 1973.) Immediately following Zurcher, section 1524 was amended to bar search...