ANTHONY SHEEN, as Trustee, etc.,
This is an appeal by attorneys who represented a now deceased trustee of a trust, and by beneficiaries of that trust whom the attorneys also represented, from an order requiring production of the attorneys' trust file to the trustee's successor, and to an individual who claims to represent the late trustee personally.1 Appellants also appeal from an order refusing to vacate the order.
We agree with appellants that the order is overbroad, only to the extent that it provides for turnover of documents generated subsequent to the former trustee's death. Additionally, we hold that the claimed representative was not entitled to production. Hence, we modify the order, and affirm it as modified. We also affirm the order refusing to vacate the principal order.
This appeal concerns the living trust of Quinlock K. Sheen (trust), who died in 2002. As the trust directed, on her death her daughter Eugenia Ringgold (Ringgold) succeeded her as trustee, and the trust's assets passed to Quinlock Sheen's surviving children, and the issue of those who had predeceased her.
The appellants are three beneficiaries of the trust, Charles Sheen, Derek Hersha, and Deryl Gaylord (beneficiaries); certain attorneys who represented the beneficiaries, as well as Ringgold while she was trustee, namely Leslie Howell,2 Fritzie Galliani, Law Offices of Fritzie Galliani,3 and two other attorneys who were retained after Ringgold's death, Mark Hankin and Evan Marshall. The respondents are Anthony Sheen, Ringgold's successor as trustee of the trust, and Nathalee Evans, who claims to be Ringgold's executor and trustee of Ringgold's own trust.
In 2005, the beneficiaries and Ringgold, who also was a beneficiary of the trust as well as its trustee, commenced a proceeding under Probate Code section 850 (undesignated section references are to that code), to restore to the trust properties that Quinlock Sheen had transferred to another daughter (Dolores Sheen) while allegedly of unsound mind and under undue influence. Ringgold and the beneficiaries retained Howell, then with the firm of McNally & Crowder, to prosecute the proceeding. Howell's retainer agreement with Ringgold stated that “This firm will be representing you as a beneficiary and as the trustee of Quinlock's trust.” When Howell became affiliated with appellant Galliani the same year, the beneficiaries and Ringgold signed new retainer agreements. Ringgold's second retainer did not refer to her status as trustee; but both the section 850 petition and an amended petition, which Howell and Galliani filed, distinctly alleged it. The beneficiaries and Ringgold also signed multiple representation and conflict waiver agreements with Galliani, which included their consent that any information they provided to the firm could be disclosed to the other petitioners.
From virtually the outset of Anthony Sheen's trusteeship, he and the appellant attorneys, representing the beneficiaries, pursued adverse proceedings against one another. These included a June 2006 petition by the beneficiaries to remove Anthony Sheen as trustee, and a contemporaneous motion by him to disqualify Howell and Galliani from representing the beneficiaries.4
By ex parte application filed in October 2006, Anthony Sheen requested that the superior court direct the attorneys to turn over to him the complete “case file” of the trust, including matters in the section 850 petition. Anthony Sheen stated he required these documents to address the attorneys' efforts to remove him, their claim for fees, and issues arising from the denial of his motion to disqualify Howell. Anthony Sheen and his attorney had requested the same documents beginning in June 2006. On September 21, 2006, Howell had rejected the request, on grounds that the deadline for discovery on the petition for removal had expired, and also that Anthony Sheen had breached the trust.
The ex parte application was continued several times. On November 21, 2007, the court set for December 5, 2007 the matter of “turning over the file to the ․ current trustee,” with a joint report to be filed following a meet-and-confer session. That report contained formal argument by Anthony Sheen's attorney and informal letter submissions by Marshall and Hankin. Howell and Galliani did not participate in it. A separate submission was filed by Nathalie Evans, whom Ringgold had originally designated as a successor executor and successor trustee of Ringgold's own trust, and who claimed entitlement to the case file as successor to Ringgold as an individual.
At the hearing on December 5, 2007, the court requested the attorneys for Anthony Sheen and for Evans to prepare a proposed order, and present it after entertaining comment by the other parties (beneficiaries and attorneys). On December 24, 2007, the court entered the dispositive, attorney-prepared order. It directed Howell, Galliani, Hankin, and Marshall to produce to Anthony Sheen's attorneys and Evans's counsel, by January 2, 2008, “all records and files” pertaining to the section 850 proceedings and any later proceedings in the trust, from Howell's first retention until the present order. The original file was to be delivered to Anthony Sheen, with a page-numbered copy lodged for copying. Quoting Evidence Code section 962, relating to joint clients, as well as language from the beneficiaries' and Ringgold's retainer agreements, the order directed that no documents could be withheld from production based on claims of attorney-client or work product privilege.
One week later, appellants filed with this court a petition for writ of mandate to set aside the order. After entering a temporary stay, we summarily denied the petition on February 14, 2008. On February 21, 2008, Marshall presented to the trial court an ex parte application to vacate the order, asserting it had been rendered in violation of the due process rights of Tracy Sheen, a contestant with Evans for recognition as Ringgold's trustee. The trial court denied the application, and directed that the file be turned over by February 27, 2008. The following day, appellants filed their notice of appeal from the order and from the refusal to vacate it. This court later denied the attorneys' petition for supersedeas.
Appellants contend that neither Anthony Sheen nor Evans should have been granted access to and possession of the attorneys' files concerning the trust. We first discuss the issues concerning the order with respect to Anthony Sheen, some of which also apply to Evans's claimed entitlement. We then address remaining questions that particularly pertain to Evans.
1. The Order as to Anthony Sheen.
Anthony Sheen's asserted right to the trust file derived from his status as successor to Ringgold, the predecessor trustee whom the attorneys represented -with the beneficiaries - in the section 850 proceedings. Generally speaking, a successor trustee succeeds to all the rights of the predecessor in that capacity, including the right to receive the trust file of an attorney previously retained to assist in administering the trust. (Moeller v. Superior Court (1997) 16 Cal.4th 1124, 1129-1130, 1131 (Moeller ); Eddy v. Fields (2004) 121 Cal.App.4th 1543, 1548-1549; see Rules Prof. Conduct, rule 3-700(D).) Appellants, however, contend that the order is not supported by these principles, for several reasons.
Primarily, appellants contend that Howell and Galliani represented Sheen's predecessor Ringgold only as an individual, not as a trustee, in the section 850 proceeding. Conjunctively, appellants assert that the section 850 proceeding did not involve trust administration. (Cf. Moeller, supra, 16 Cal.4th at p. 1134.) The record does not support these contentions.
Howell's retainer with Ringgold specified that she was being represented as both individual beneficiary and trustee. The absence of similar language from Galliani's retainer cannot be seen as retracting the original representation, and of course the amended petition filed under Galliani's auspices, like its predecessor, alleged Ringgold's trustee status. Howell later declared under oath: “I was retained to return property to the [trust]․ I represented [Ringgold] as a beneficiary and as trustee to litigate to put the property back․
Appellants' argument that the section 850 petition did not involve trust administration ignores the nature and purpose of the proceeding, which was to regain trust properties that had been diverted. (Cf. Moeller, supra, 16 Cal.4th at p. 1133.) A successor trustee “ ‘succeed[s] to all the rights, duties and responsibilities of his precedecessors' ” (id. at p. 1131), not merely those delineated by the Probate Code part entitled “Trust Administration” (§ 16000 et seq.). Moreover, the fact that section 850 permits action by both trustees and non-trustees does not render “personal” a petition a trustee brings under that section (see id., subd. (a)(3)(B)). The record reflects that the section 850 proceeding involved representation of Ringgold as trustee.
Appellants next contend that this representation ended when Ringgold died, on April 30, 2006, and Anthony Sheen replaced her. That is correct. (Civ.Code, § 2356, subd. (a); Swartfager v. Wells (1942) 53 Cal.App.2d 522, 527-528.) Consequently, as appellants argue, the court had no basis for granting Anthony Sheen any part of the attorneys' files that came into being after that date. This includes any files of Marshall or Hankin, who were later retained by the beneficiaries and never represented Ringgold.
Anthony Sheen resists this conclusion by citing documents filed in the section 850 proceeding after Ringgold's death - i.e., the proposed judgment and amended judgment, the beneficiaries' notice of cross-appeal, and Marshall's association of counsel - in which Ringgold was named as one of the petitioners or appellants. Sheen also claims that the trial court made a factual finding that the attorneys represented Ringgold after her death. None of these matters can accomplish the legal (and factual) impossibility of representation of a dead person. (See Swartfager v. Wells, supra, 53 Cal.App.2d at p. 528.)
In this connection, Anthony Sheen implies that he seeks access only to the case file for the section 850 proceeding, including phases conducted after Ringgold's death. In a concession not necessarily warranted by the order's broad temporal language, Anthony Sheen states that he does not read the order to encompass the attorneys' files regarding the petition to remove him as trustee, or his own motion to disqualify the attorneys. Because the attorneys did not and could not represent Ringgold after her death, Anthony Sheen is not entitled to their files after that time period.
Appellants argue that no privileged trustee communications should be disclosed to Anthony Sheen because he may yet be removed as trustee, as a result of the beneficiaries' still-pending 2006 petition for removal. Additionally, it is argued that he poses a potential threat of a breach of confidentiality and improper dissemination. These arguments are simply speculative. Moreover, they cannot overcome Anthony Sheen's existing position as trustee and successor to Ringgold.
Appellants finally contend that the court erred in requiring disclosure irrespective of any claim of attorney work product privilege (see Code Civ. Proc., § 2018.010 et seq). That privilege was enacted to protect attorneys' work product from discovery in the context of litigation. (Id., § 2018.020.) In that context, there is an absolute privilege against discovery of writings reflecting “an attorney's impressions, conclusions, opinions, or legal research or theories” (id., § 2018.030, subd. (a)), and a qualified one for other work product (id., § 2018.030, subd. (b)). The privilege belongs to the attorney. (Wells Fargo Bank v. Superior Court (2000) 22 Cal.4th 201, 215, fn. 5, citing Lasky, Haas, Cohler & Munter v. Superior Court (1985) 172 Cal.App.3d 264, 271 (Lasky ).)
Relying on the last-stated factor, appellants take the position that the attorneys were entitled to withhold their work product from their trustee client, and consequently from her successor, in the context of file turnover following trustee succession. We do not agree.
In determining that the attorney is the holder of the privilege, the court in Lasky, supra, 172 Cal.App.3d 264 distinguished “an assertion of the work product privilege in the discovery context” from the position of work product under an attorney's duty to provide the case file to a former client. (Id. at p. 275.) Although some decisions enforcing that duty “referred to work product in the generic, nonprivilege sense” (id. at p. 277), Lasky acknowledged that there existed a theoretical and functional difference between a client's entitlement to a former attorney's case file, and “efforts by third parties and former clients to discover ‘absolute’ work product” in litigation. (Id. at p. 278.)
It is in the adversarial, litigation context that “the attorney is the sole holder of the privilege and may effectively assert it even as against a client.” (Lasky, supra, 172 Cal.App.3d at p. 278; see Metro-Goldwyn-Mayer, Inc. v. Superior Court (1994) 25 Cal.App.4th 242, 247.) Different considerations, and a different result, prevail with respect to an attorney's obligation to transfer a former client's papers to the client. The present order's preclusion of work product privilege objections to the transfer of files was not erroneous.
B. The Order as to Evans.
The limitations upon the order discussed above would apply to the ordered production of the case file to respondent Evans. Appellants, however, also advance a more fundamental challenge to Evans's entitlement to the file. Simply put, Evans did not establish a right to the file.
Evans asserts that she is the trustee of Ringgold's own living trust. Even if this were true, it would not entitle Evans to the attorneys' papers, as a successor to Ringgold. Evans is not a successor trustee of the trust, like Anthony Sheen; nor, as Ringgold's alleged trustee, would she be Ringgold's successor.
In any event, Evans is not the trustee of the Ringgold trust. Although that trust originally named her as second in line to succeed Ringgold as trustee, Ringgold later inserted Tracy Sheen as the first named successor trustee. In a probate court proceeding about the validity and effectiveness of that designation, Tracy Sheen prevailed. Although Evans has separately appealed from the judgment confirming Tracy Sheen as the Ringgold trustee, she is not presently that trustee.
The second capacity in which Evans claims entitlement to the attorneys' trust file is as executor of Ringgold's estate and personal representative. But once more, the record Evans has adduced does not establish her status as executor. In her will, Ringgold originally nominated Charles Evans as executor, with Nathalee Evans to serve if Charles Evans could not. But contemporaneously with the change of trustees, Ringgold replaced Charles Evans's name as executor with that of Tracy Sheen. The validity of this nomination has apparently not been litigated. Nor, it appears, has Nathalee Evans been appointed executor. (See § 8400, subd. (a); see also § 8001.) Under these circumstances, she did not qualify as Ringgold's personal representative or for receipt of the trust file.5
3. The Application to Vacate.
Marshall's February 21, 2008 application to vacate the order was based on an asserted failure to give notice of the proceedings to Tracy Sheen, Evans's opponent for trustee of Ringgold's trust. The application contended that without notice to Tracy Sheen, the order had effectively decided that contest, which was then pending in another department of the superior court, by recognizing Evans as the trustee.
In truth, however, the order made no such determination. The court awarded Evans standing to claim the file based on her representation that she was Ringgold's executor and personal representative. The application to vacate the order was properly denied.
The order of December 24, 2007 is modified to provide that the production shall be to Anthony Sheen and his attorney only, and shall be limited to Howell's and Galliani's files and papers that were prepared on or before April 30, 2006. As so modified, the order is affirmed. The order of February 21, 2008, denying the application to vacate the order, is affirmed. The parties shall bear their own costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BIGELOW, P. J.
FN1. This order, dated December 24, 2007, is referred to hereafter as the order.. FN1. This order, dated December 24, 2007, is referred to hereafter as the order.
FN2. Howell originally was an appellant here, but the appeal was dismissed as to her after she failed to file an opening brief (Cal. Rules of Court, rule 8.22(c)).. FN2. Howell originally was an appellant here, but the appeal was dismissed as to her after she failed to file an opening brief (Cal. Rules of Court, rule 8.22(c)).
FN3. We refer to that office and its principal, both appellants here, as Galliani.. FN3. We refer to that office and its principal, both appellants here, as Galliani.
FN4. The motion to disqualify was denied, but Howell and Galliani subsequently substituted out of representing the beneficiaries. For that reason, this court dismissed as moot Anthony Sheen's appeal from the denial of disqualification. (Sheen v. Sheen (July 2, 2009) B196060 [nonpub opn.].). FN4. The motion to disqualify was denied, but Howell and Galliani subsequently substituted out of representing the beneficiaries. For that reason, this court dismissed as moot Anthony Sheen's appeal from the denial of disqualification. (Sheen v. Sheen (July 2, 2009) B196060 [nonpub opn.].)
FN5. In her brief, Evans renews a request she previously made by motion -which this court denied - that the appeal be dismissed as an equitable matter, because appellants have not complied with the order. Taking into consideration the relevant facts and equitable considerations, we again do not find dismissal to be appropriate.. FN5. In her brief, Evans renews a request she previously made by motion -which this court denied - that the appeal be dismissed as an equitable matter, because appellants have not complied with the order. Taking into consideration the relevant facts and equitable considerations, we again do not find dismissal to be appropriate.
FOOTNOTE. FN*. Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.