Supreme Court of California Justia
Docket No. S120332
HLC Properties, Limited v. Super. Ct.

Filed 2/14/05


Ct.App. 2/5 B167458
Los Angeles County
Super. Ct. No. SC062601
MCA RECORDS, INC., et al.,
Real Parties in Interest.
At issue in this matter are 59 written communications pertaining to three
recording contracts executed by the late Harry Lillis Crosby, the talented
entertainer known to all as Bing Crosby. In the proceedings below, the trial court
rejected plaintiffs’ claim of attorney-client privilege with respect to the 59
documents, many of which were either authored or received by persons Crosby
had hired to help manage his business interests. We conclude that the trial court
ruled correctly and that the Court of Appeal erred in granting plaintiffs’ petition
for writ of mandate.
Bing Crosby was one of the most successful entertainers of his time. When
he died in 1977, he left an extensive portfolio of interests in records, radio and

television productions, motion pictures, and musical and literary works, as well as
the contract and publicity rights related to those interests. He also left business
interests he had accumulated in mining, oil, real estate, and other financial
ventures. Crosby owned these interests during his lifetime, but he managed them
with the assistance of others he employed. One such employee was Basil Grillo
(Grillo), an accountant who became Crosby’s business manager and worked for
him for over 30 years. Crosby and his employees referred to Crosby’s various
business operations collectively as “Bing Crosby Enterprises” (Enterprises).1
After Crosby’s death, the executor of his estate (Richard C. Bergen of the
law firm of O’Melveny & Meyers) continued to maintain “Mr. Crosby’s business
office,” where Enterprises operated. In 1980, the executor entered into a limited
partnership agreement with Hillsborough Productions, Inc. and Kathryn G. Crosby
(Crosby’s second and surviving spouse) to form HLC Properties, Limited (HLC
Properties), an entity that would manage the interests Crosby left. Ultimately, the
executor transferred the estate’s 78.685 percent interest in certain properties to
HLC Properties. Kathryn G. Crosby also transferred her 21.315 percent interest in
these same properties to HLC Properties. The properties transferred to HLC
Properties include the three recording contracts that are the subject of this
litigation. In January 1981, the superior court filed the “Order Settling First and
Final Account and Report of Executor, etc.,” which approved the formation of
HLC Properties, approved the estate’s agreement to transfer estate properties and
assets to HLC Properties, and approved the estate’s transfer of its limited

Not to be confused with Enterprises, a corporation called Bing Crosby
Enterprises, Inc. was formed in the 1940’s, but was later dissolved or otherwise
liquidated in the 1950’s.

partnership interest in HLC Properties to various family member trusts. Upon
final distribution of the estate, the executor was discharged.
In July 2000, HLC Properties and the trustee for the Wilma Wyatt Crosby
Trust2 (collectively HLC) initiated this action against defendants MCA Records,
Inc., GRP Records, Inc., UMG Recordings, Inc., MCA, Inc., and Universal
Studios, Inc. (collectively MCA), for allegedly underpaying royalties due on three
recording contracts between Crosby and MCA’s predecessors in interest, dated
March 29, 1943, January 3, 1949, and May 10, 1956, respectively.
In the course of pretrial discovery, MCA propounded to HLC a demand for
production of documents. In response, HLC produced some documents but
withheld others that it listed in a privilege log as containing protected attorney-
client communications. MCA later issued a third party deposition subpoena to
Crosby’s former law firm, O’Melveny & Meyers, for production of documents.
O’Melveny & Meyers produced some documents through HLC’s attorney, who
also submitted a “supplemental privilege log” that added three documents to
HLC’s original privilege log.
Thereafter, MCA issued a subpoena duces tecum to HLC for the production
at trial of 59 of the documents HLC listed in its privilege logs. Many of the 59
documents reflected written communications between attorneys and persons
Crosby had hired, and of those, approximately 48 had been sent when Crosby
apparently was conducting an audit of his recording artist royalties in 1959 and
1960. In its motion and trial court briefing on the matter, MCA contended the 59
documents might provide critical support to its interpretation of the royalty

Wilma Wyatt Crosby, Crosby’s first wife, owned a community property
interest in any royalty stream from recordings made during their marriage.

provisions in dispute and its position that the contracting parties had previously
resolved the accounting matters at issue.
On the first day of trial, the court considered the enforceability of MCA’s
subpoena duces tecum in view of HLC’s attorney-client privilege objections.
After hearing counsel’s arguments, the court agreed with MCA that Crosby was
the client and the holder of the privilege and that the privilege terminated after his
death. The court did not recognize Enterprises or HLC as a privilege holder.
The Court of Appeal granted HLC’s petition for a writ of mandate in a
published opinion. In brief, it found that Enterprises constituted an organization
during Crosby’s lifetime, and therefore that HLC, as Enterprises’ successor,
currently holds the privilege. The Court of Appeal remanded the matter to the trial
court with instructions to vacate its order compelling compliance with MCA’s
subpoena duces tecum and to consider each document listed in HLC’s privilege
logs to determine whether, in accordance with the appellate court’s opinion, the
attorney-client privilege applied.
We granted MCA’s petition for review.
As proposed by the California Law Revision Commission (the
Commission) and subsequently enacted by the Legislature in 1965, the Evidence
Code3 declares authoritatively that evidentiary privileges such as the attorney-
client privilege are governed by statute. (§ 911; Moeller v. Superior Court (1997)
16 Cal.4th 1124, 1129.) The party claiming a privilege shoulders the burden of
showing that the evidence it seeks to suppress falls within the terms of an
applicable statute. (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723,

All further statutory references to this code unless otherwise indicated.

729 (Chadbourne); see also People v. Gionis (1995) 9 Cal.4th 1196, 1208
“ ‘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 [citations].’ ” (Gionis, supra, 9 Cal.4th at p. 1208, quoting
Chadbourne, supra, 60 Cal.2d at p. 729.) Accordingly, unless a claimed privilege
appears as a matter of law from the undisputed facts, an appellate court may not
overturn the trial court’s decision to reject that claim. (See ibid.)
In the matter before us, HLC relies on section 953, subdivision (d), which
defines a holder of the attorney-client privilege to include “[a] successor . . . of
a[n] . . . association [or] organization . . . that is no longer in existence.” HLC’s
primary argument, which the Court of Appeal also largely espoused, is that
Enterprises was an unincorporated organization; that during Crosby’s lifetime,
Enterprises was the client and holder of the attorney-client privilege with respect
to the 59 withheld documents; and that HLC currently holds the privilege as
Enterprises’ successor.4
Conversely, MCA relies on section 953, subdivision (c), which provides
that, “if the client is dead,” the holder of the attorney-client privilege is the client’s

At times, HLC contends Enterprises was either an “association” or an
“organization” as those terms are used in section 953, subdivision (d). As HLC
points out, however, Black’s Law Dictionary defines an “association” to include
“[a]n unincorporated business organization that is not a legal entity separate from
the persons who compose it” and defines an “organization” as “a body of persons
(such as a union or corporation) formed for a common purpose,” thus offering
somewhat overlapping definitions for the two terms. (Black’s Law Dict. (7th ed.
1999), pp. 119, col. 1 [association], 1126, col. 1 [organization].)

“personal representative.” It is MCA’s position that Bing Crosby, the natural
person, not Enterprises, was the client and holder of the attorney-client privilege
with respect to the 59 documents; that the executor of Crosby’s estate held the
privilege upon Crosby’s death; and that the privilege ceased to exist after the
estate was finally distributed and the executor discharged.
Resolution of the instant dispute hinges on two questions. First, who may
hold the attorney-client privilege initially? Second, who may succeed to the
privilege? We address these questions in order.
A. Who May Hold the Attorney-Client Privilege Initially?
With certain exceptions not relevant here, the Evidence Code provides that
a “client” has “a privilege to refuse to disclose, and to prevent another from
disclosing, a confidential communication” the client has had with an attorney “if
the privilege is claimed by” someone statutorily authorized to do so. (§ 954.) A
“client” means “a person who, directly or through an authorized representative,
consults a lawyer for the purpose of retaining the lawyer or securing legal service
or advice from him in his professional capacity.” (§ 951.) For purposes of the
Evidence Code, a “person” includes “a natural person, firm, association,
organization, partnership, business trust, corporation, limited liability company, or
public entity.” (§ 175.)
As for who may claim the attorney-client privilege, the Evidence Code
designates a “holder of the privilege” (§ 954, subd. (a)); a person the privilege
holder authorizes to claim the privilege (id., subd. (b)); or the attorney at the time
of the confidential communication if the privilege holder is in existence and has
not authorized the communication’s disclosure (id., subd. (c)). Section 953, in
turn, defines a “holder of the privilege” to mean “[t]he client when he has no
guardian or conservator” (§ 953, subd. (a)), “[a] guardian or conservator of the

client when the client has a guardian or conservator (id., subd. (b)), “[t]he personal
representative of the client if the client is dead” (id., subd. (c)), or “[a] successor,
assign, trustee in dissolution, or any similar representative of a firm, association,
organization, partnership, business trust, corporation, or public entity that is no
longer in existence” (id., subd. (d)). Pursuant to these statutory provisions, an
individual, an association, or an organization may qualify as a client, and a living
or existing client is the privilege holder initially.
HLC contends that when an unincorporated organization such as
Enterprises manages an individual’s assets or business interests, and the
individual, either personally or through agents, consults an attorney about those
assets or business interests, the managing organization holds the privilege. To
evaluate this contention, we consider what characteristics, if any, are necessary for
an organization to hold the attorney-client privilege.
In the proceedings below, the Court of Appeal reviewed various dictionary
definitions of the term “organization,” as well as case law addressing the term in
other contexts. (E.g., Random House Webster’s College Dict. (2000) p. 933
[defining “organization” as “a group of persons organized for some end or work”
or “the administrative personnel or apparatus of a business”].) Because the term
generally describes a group of persons working to pursue a common purpose, the
Court of Appeal concluded that “the business staff assembled by Crosby to operate
his entertainment interests qualifies as an organization . . . for purposes of
succession to the attorney-client privilege.” Similarly, HLC contends here that
Crosby developed Enterprises as a business organization by “surround[ing]
himself with long-term, loyal employees and attorneys to advise him in conducting
his far-reaching business interests.”
The Evidence Code does not define the term “organization.” Neither did
the Commission propose a statutory definition of the term for the Legislature’s

approval. The Commission, however, observed in a comment to the statute
defining “client” that “such unincorporated organizations as labor unions, social
clubs, and fraternal societies have a lawyer-client privilege when the organization
(rather than its individual members) is the client.” (Com. com., reprinted at 29B
pt. 3 West’s Ann. Evid. Code (1995 ed.) foll. § 951, p. 207; cf. Smith v. Laguna
Sur Villas Community Assn. (2000) 79 Cal.App.4th 639, 643 [holding that a
condominium association was the holder of the attorney-client privilege and that
its individual members could not demand production of privileged documents,
except as the association’s board allowed].) While not binding, the Commission’s
official comments reflect the intent of the Legislature in enacting the Evidence
Code and are entitled to substantial weight in construing it. (Van Arsdale v.
Hollinger (1968) 68 Cal.2d 245, 249, overruled on another point in Privette v.
Superior Court (1993) 5 Cal.4th 689, 702, fn. 4; see People v. Williams (1976) 16
Cal.3d 663, 667-668.)
As MCA points out, each of the three unincorporated organizations the
Commission lists is a collective entity that the Internal Revenue Code recognizes
as having tax exempt status. (Int. Rev. Code, § 501(c)(5) [labor organizations];
id., § 501(c)(7) [social clubs]; id., § 501(c)(8) [fraternal organizations].)
Additionally, the assets of the listed organizations generally are not subject to
probate administration when their individual members die. Here, there is no
suggestion that Enterprises qualified for tax exempt status, and the three recording
contracts at issue were probated as part of Crosby’s estate. Nonetheless, such
circumstances do not necessarily foreclose HLC’s privilege claim because the
comment to section 951 does not purport to limit availability of the attorney-client
privilege to only those unincorporated organizations specifically listed.
A core statutory concept is controlling on the matter, however. That is,
even assuming an unincorporated business organization may consist of an

individual and his employees working together to further the individual’s business
affairs, the Evidence Code makes clear that the attorney-client privilege belongs
only to the client, whether the client is a natural person, an unincorporated
organization, or some other entity. (§ 951; see Smith v. Laguna Sur Villas
Community Assn., supra, 79 Cal.App.4th at pp. 643-645.) Thus, the validity of
HLC’s claim that it holds the attorney-client privilege as Enterprises’ successor
depends on whether Enterprises itself, as opposed to Crosby or any other of its
supposed individual members, was the original client and privilege holder with
respect to the 59 written communications at issue.5
Here, the trial court found that Crosby, the natural person, not Enterprises
or any other business organization, was the client who sought the legal advice
reflected in the 59 documents. As a reviewing court, we may not disturb the trial
court’s finding if there is any substantial evidence to support it. (Gionis, supra, 9
Cal.4th at p. 1208; Chadbourne, supra, 60 Cal.2d at p. 729.)
Our review of the record discloses the following evidence regarding
Crosby’s identity as the client whose communications with various attorneys are at
issue. According to the sworn declaration of HLC’s counsel of record, Mark A.
Brodka, “Crosby was a ‘business machine’ ” who had business interests in a
number of fields including entertainment, mining, oil, real estate, and other
ventures. With regard to the three recording contracts at issue in this litigation,
there appears no dispute that Crosby signed them in his individual capacity, rather
than in a representative capacity on behalf of Enterprises or some other
organization. The record also confirms that, after Crosby died, his many business

For purposes of our analysis, we shall assume the 59 documents reflect
confidential attorney-client communications.

assets and interests, including the three recording contracts, were probated as part
of his estate.
The record shows that the key person responsible for managing Crosby’s
business interests throughout Crosby’s lifetime, Grillo, believed he was hired to
work for Crosby “as an individual.” As Grillo stated in his deposition testimony,
the “Enterprises” moniker was “just a loose terminology” to “cover everything
that [Crosby] did.” Although Grillo also claimed that Enterprises had employed
him, Mozelle Seger, Nancy Briggs, and others at the time of Crosby’s death, the
record contains no evidence that any source other than Crosby himself paid their
salaries and benefits. Indeed, the court files of Crosby’s probated estate contained
an order showing that, after Crosby’s death, his estate made employment
termination payments to Seger and Briggs and paid their health and life insurance
premiums.6 All this supports the conclusion that Crosby acted in an individual
capacity in running his business affairs, not in any representative capacity on
behalf of an entity with independent interests or an organization representing the
collective interests of Crosby and other members.
Finally, the record indicates the attorneys listed on HLC’s privilege logs as
authors or recipients of the 59 withheld documents regarded Crosby as the client
they represented. Referring to the logs, Brodka declared: “Members of the
[O’Melveny & Meyers] firm who represented Crosby included: John O’Melveny,
Richard C. Bergen, and Donald Petroni. Additional attorneys who represented

That order also approved the executor’s first and final account and report,
in which the executor described Grillo as “Mr. Crosby’s former business manager”
and indicated the estate had incurred expenses to retain Grillo “to advise [the
executor] with respect to a variety of matters pertaining to the estate.” The
executor’s report also described the office located at 170 North Robertson
Boulevard, where Enterprises operated, as “Mr. Crosby’s business office.”

Crosby or whom Crosby consulted with were, among others: Thomas O’Sullivan,
Stewart Schwartz, George Foley, Todd Johnson and B. Beck.” (Italics added.)
Similarly, Grillo testified in his deposition that John O’Melveny and Todd
Johnson “represented Crosby” and hired Grillo “for” Crosby. Thomas O’Sullivan,
a tax attorney, indicated in his deposition that he did tax planning and prepared
state and federal income tax returns for both Crosby and Bing Crosby Productions,
but not Enterprises.7 Notably, none of these attorneys claimed to have performed
separate legal work on behalf of Enterprises.8
In sum, the record contains substantial evidence supporting the trial court’s
determination that a natural person, Crosby, was the original client who held the
attorney-client privilege for the communications pertaining to his three recording
contracts. Likewise, the evidence fails to demonstrate, as a matter of law, that
Enterprises was the client of the named attorneys with interests of its own or its
collective members to protect. (See Gionis, supra, 9 Cal.4th at p. 1208;
Chadbourne, supra, 60 Cal.2d at p. 729.) HLC offers no authority suggesting that
Crosby himself could not be the client on whose behalf those attorneys were
consulted, merely because he employed others to assist him in managing his
business interests and assets. (See § 951 [“client” means “a person who, directly

O’Sullivan described Bing Crosby Productions as a corporation engaged in
motion picture and television production. For purposes of the matter before us,
HLC is not claiming an attorney-client privilege with respect to communications
involving Bing Crosby Productions.
Although HLC’s privilege logs purport to represent that many of the
withheld documents reflect communications between attorneys and agents of both
Crosby and Enterprises (e.g., Grillo), HLC clarified at oral argument that it
contends only one attorney-client privilege is at issue here. That is, HLC is not
claiming there was more than one client holding the privilege when the subject
communications were made.

or through an authorized representative, consults a lawyer for the purpose of
retaining the lawyer or securing legal service or advice from him in his
professional capacity” (italics added)].) Accordingly, we shall not disturb the trial
court’s determination.
To support its claim of privilege, HLC relies on several cases involving
trusts and/or incorporated organizations to argue that control over the assets of a
business organization brings with it the right to assert the attorney-client privilege.
HLC’s authorities, however, merely hold or recognize that when corporate
organizations are merged or when control of a corporation or formalized trust
passes to new management, the power to assert or waive the privilege resides in
the new managers. (E.g., Commodity Futures Trading Comm’n v. Weintraub
(1985) 471 U.S. 343, 354 [trustee of a corporation in bankruptcy has power to
waive the corporation’s attorney-client privilege with respect to prebankruptcy
communications]; Moeller v. Superior Court, supra, 16 Cal.4th at p. 1127
[successor trustee of a private express trust assumes all powers of a predecessor
trustee and is entitled to access to trust documents reflecting confidential
communications between the predecessor trustee and its attorney on matters of
trust administration]; Dickerson v. Superior Court (1982) 135 Cal.App.3d 93, 98-
99 [corporation’s attorney-client privilege passed to successor in interest through
merger]; Pilates, Inc. v. Georgetown Bodyworks (D.D.C. 2000) 201 F.R.D. 261,
263-264 [plaintiff was not entitled to assert the attorney-client privilege where it
acquired no stock and obtained no control of the corporate client, but merely
obtained two of the client’s trademarks through an assignment].) Because there is
substantial evidence in the record that Crosby, a natural person, initially held the
privilege, we find these decisions, which pertain to invocations or waivers of a
trust’s or a business entity’s privilege, inapposite.

B. Who May Succeed to the Attorney-client Privilege?
We now consider whether the Evidence Code permits HLC to succeed to
Crosby’s attorney-client privilege.
We begin with a review of the relevant Evidence Code provisions. Section
953 states without qualification that the holder of a deceased client’s attorney-
client privilege is the client’s personal representative. (§ 953, subd. (c).) Section
954 specifies that, except as otherwise provided by statute, the privilege may be
claimed only by a holder of the privilege (id., subd. (a)), by a person whom the
holder authorizes to claim the privilege (id., subd. (b)), or by the person who was
the attorney at the time of the confidential communication, so long as a privilege
holder exists and has not authorized disclosure (id., subd. (c)). Taken together,
these two sections unambiguously provide that only a personal representative may
claim the attorney-client privilege in the case of a deceased client.
In a comment to section 954, the Commission states: “the privilege ceases
to exist when the client’s estate is finally distributed and his personal
representative is discharged.” (Com. com., 29B pt. 3 West’s Ann. Evid. Code,
supra, foll. § 954, p. 232.) According to the comment, the Commission proposed
this limitation after carefully weighing competing policy concerns: “Although
there is good reason for maintaining the privilege while the estate is being
administered—particularly if the estate is involved in litigation—there is little
reason to preserve secrecy at the expense of excluding relevant evidence after the
estate is wound up and the representative is discharged.” (Ibid.) Here, the
Commission’s comments confirm the plain meaning of the statutory provisions:
the attorney-client privilege of a natural person transfers to the personal
representative after the client’s death, and the privilege thereafter terminates when
there is no personal representative to claim it.

These statutory provisions dictate the outcome in the matter before us.
When Crosby died, his privilege transferred to his personal representative, i.e., the
executor of his estate. But once Crosby’s estate was finally distributed and his
personal representative discharged, the privilege terminated because there was no
longer any privilege holder statutorily authorized to assert it. (§ 953, subd. (c);
Com. com., 29B pt. 3 West’s Ann. Evid. Code, supra, foll. § 954, pp. 231-232.)
Accordingly, HLC’s privilege claim is without merit.
In arguing to the contrary, HLC contends that, even assuming Crosby
individually held the attorney-client privilege with respect to the withheld
documents, an estate also qualifies as an “organization” within the meaning of
section 953, subdivision (d), so as to render it capable of holding and then validly
transferring the decedent’s privilege, along with his assets, to a “successor.” HLC
finds it significant that an estate is considered an organization for purposes of the
California Uniform Commercial Code (Cal. U. Com. Code, § 1201, subd. (28); see
also id., § 9503; U. Com. Code com. 2, 23B pt. 2 West’s Ann. Code U. Com.
Code (2002 ed.) foll. § 9503, pp. 534-535 [financing statement requirements for
perfecting a security interest or agricultural lien]) and other California statutes
(Gov. Code, § 6161, subd. (f) [State Payment Card Act]). HLC reasons that,
because it acquired all of the estate’s rights to Crosby’s recordings pursuant to a
limited partnership agreement, HLC validly holds the privilege under section 953,
subdivision (d), as a successor to the estate.9

At the trial court hearing on this matter, HLC argued that HLC Properties
was a successor in interest to Crosby’s estate, which had succeeded to the
privilege Crosby held as an individual: “The purpose of [section] 953
[subdivision] (d) is to clearly permit a successor in interest from the entity. And
the precise answer to your question, what was the predecessor of HLC, the
predecessor of HLC was the estate of Bing Crosby. The entity. Which under
[section] 953 [subdivision] (c) succeeded to the individual privilege of Crosby.”

We are not convinced. As discussed, the Evidence Code addresses the
matter of estates in section 953, subdivision (c), which expressly limits the holder
of the attorney-client privilege in cases of a deceased client to the personal
representative. (See also Com. com., 29B pt. 3 West’s Ann. Evid. Code, supra,
foll. § 954, p. 232 [addressing termination of a deceased client’s privilege].)
Estates are not listed and do not logically belong in section 953, subdivision (d),
where provision is made for the privilege to survive when the client is not a
natural person and no longer exists. Were we to adopt HLC’s position, the
attorney-client privilege of natural persons would survive distribution of their
estates and would extend to persons and entities beyond their personal
representatives. Regardless whether other statutory schemes categorize estates as
organizations for other distinct legislative purposes, our doing so here would
nullify section 953’s specific limitation on who may hold the privilege “if the
client is dead.” (§ 953, subd. (c).) It also would defeat the legislative mandate
calling for the privilege to terminate when a client has died, the personal
representative has been discharged, and there is no longer anyone to hold the
privilege. (Ibid.; § 954, subd. (a); see Com. com., 29B pt. 3 West’s Ann. Evid.
Code, supra, foll. § 954, pp. 231-232.) We therefore decline HLC’s invitation to
construe the term “organization,” as it appears in section 953, subdivision (d), to
include an estate.
HLC additionally contends its position is supported by Probate Code
section 9760, which authorizes a personal representative to continue the operation
of a decedent’s wholly or partly owned unincorporated nonpartnership business,
subject to certain restrictions, if “it is to the advantage of the estate and in the best
interest of the interested persons.” (Prob. Code, § 9760, subd. (b).) We do not

The authority conferred in Probate Code section 9760 complements section
953, subdivision (c)’s grant of authority to the personal representative to assert or
waive the attorney-client privilege while the decedent’s estate is being
administered. (See Com. com., 29B pt. 3 West’s Ann. Evid. Code, supra, foll.
§ 953, p. 230 [commenting that section 953 represents a “change in California
law,” which formerly recognized the privilege “even when it would be clearly to
the interest of the estate of the deceased client to waive it”].) If anything, the fact
that the Evidence Code recognizes no exception to termination of a decedent’s
privilege when the personal representative is discharged, even though the Probate
Code specifically authorizes a personal representative to operate the decedent’s
unincorporated nonpartnership business, undermines the position that termination
of a decedent’s privilege depends on the personal representative’s activities in
administering an estate.
Finally, HLC argues that “[f]ailing to find that Enterprises is the holder of
the privilege may lead to the unfair and anomalous result of allowing MCA to
view documents that were clearly attorney-client privileged when made, while
MCA withholds as privileged its documents relating to the same agreements at
issue.” The argument fails to persuade. It is well settled that “[t]he privileges set
out in the Evidence Code are legislative creations; the courts of this state have no
power to expand them or to recognize implied exceptions.” (Wells Fargo Bank v.
Superior Court (2000) 22 Cal.4th 201, 206, and cases cited.) This rule precludes
judicial expansion of the attorney-client privilege in cases where, as here,
contracts between an individual and a corporate entity give rise to disputes
between those asserting rights under such contracts.
In closing, we do not suggest that entities formed to manage the business
affairs of a natural person can never be clients or never hold attorney-client

privileges in their own right. Nor do we find that a personal representative’s
assertion of the privilege categorically forecloses others from claiming it as to the
same communications. But the Evidence Code unmistakably provides that the
attorney-client privilege belongs only to the client, whether the client is a natural
person or a business entity, and the record here amply supports the trial court’s
determination that Crosby, not Enterprises, was the original client and holder of
the privilege with respect to the 59 withheld documents. Under these
circumstances, the Evidence Code compels us to find that, when Crosby died, his
privilege transferred to the executor of his estate and thereafter ceased to exist
upon the executor’s discharge.
We reverse the judgment of the Court of Appeal, and remand the matter to
that court for further proceedings consistent with the views expressed herein.




See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion HLC Properties v. Superior Court

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 112 Cal.App.4th 305
Rehearing Granted


Opinion No.

Date Filed: February 14, 2005


County: Los Angeles
Judge: Terry Friedman


Attorneys for Appellant:

Law Offices of Mark A. Brodka, Mark A. Brodka; Girardi and Keese, Thomas V. Girardi, Howard B.
Miller and Shahram S. Shayesteh for Petitioner


Attorneys for Respondent:

No appearance for Respondent.

Irell & Manella, Gregory R. Smith, Steven A. Marenberg, Steve Kang, Elizabeth L. Rosenblatt and Philip
M. Kelly for Real Parties in Interest.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Mark A. Brodka
Law Offices of Mark A. Brodka
12100 Wilshire Boulevard, Suite 700
Los Angeles, CA 90025
(310) 820-4597

Howard B. Miller
Girardi and Keese
1126 Wilshire Boulevard
Los Angeles, CA 90017-1904
(213) 977-0211

Steven A. Marenberg
Irell & Manella
1800 Avenue of the Stars, Suite 900
Los Angeles, CA 90067-4276
(310) 277-1010


Opinion Information
Date:Docket Number:
Mon, 02/14/2005S120332

1Mca Records, Inc. (Real Party in Interest)
Represented by Gregory R. Smith
Irell & Manella
1800 Ave Of The Stars #900
Los Angeles, CA

2Superior Court Of Los Angeles County (Respondent)
1725 Main Street
Santa Monica, CA 90401

3Hlc Properties, Ltd. (Petitioner)
Represented by Howard B. Miller
Girardi & Keese
1126 Wilshire Blvd
Los Angeles, CA

4Hlc Properties, Ltd. (Petitioner)
Represented by Mark A. Brodka
Attorney at Law
12100 Wilshire Blvd #700
Los Angeles, CA

5Osullivan, Thomas E. (Petitioner)
6Wilma Wyatt Crosby Trust (Petitioner)
7Grp Records, Inc. (Real Party in Interest)
8Umg Recordings, Inc. (Real Party in Interest)
9Mca, Inc. (Real Party in Interest)
10Universal Studios, Inc. (Real Party in Interest)

Feb 14 2005Opinion: Reversed

Nov 6 2003Petition for review filed
  counsel for real parties MCA Records, Inc., et al.
Nov 7 2003Record requested
Nov 7 2003Received Court of Appeal record
  one doghouse
Nov 26 2003Answer to petition for review filed
  petitioners HLC Properties, Ltd., et al
Dec 23 2003Letter sent to:
  all parties enclosing a copy of the grant order and the certification of interested entities and persons.
Dec 23 2003Petition for Review Granted (civil case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Dec 30 2003Request for extension of time filed
  opening brief/merits to 2-23-03>>real parties MCA Records, Inc., etal
Jan 6 2004Filed:
  Petitioner's response (non-objection) to real parties in interest's application for extension of time
Jan 7 2004Certification of interested entities or persons filed
  real parties MCA Records, Inc.
Jan 7 2004Certification of interested entities or persons filed
  By counsel for Petitioners {HLC Properties, LTD.,}.
Jan 8 2004Extension of time granted
  to 2-23-04 for RPIs to file the opening brief on the merits.
Jan 15 2004Certification of interested entities or persons filed
  by Howard B. Miller, Attorney for Thomas E. O'Sullivan, Trustee of the Wilma Wyatt Crosby Trust.
Feb 23 2004Opening brief on the merits filed
  real parties MCA Records, Inc., etal
Mar 18 2004Answer brief on the merits filed
  petitioners HLC Properties, Ltd, etal
Apr 6 2004Reply brief filed (case fully briefed)
  real parties MCA Records, Inc. etal
Dec 8 2004Case ordered on calendar
  1/4/05 @9am - San Francisco
Dec 20 2004Filed:
  Request of petitioner (HLC Properties et al.) to divide oral argument time.
Dec 30 2004Filed:
  The request of counsel for petitioners to allow two counsel to argue on behalf of petitioners at oral argument is hereby granted.
Dec 30 2004Filed:
  The request of petitioners to allocate to Mark A. Brodka 15 minutes and Howard B. Miller 15 minutes of petitioners 30-minute allotted time for oral argument is granted.
Jan 4 2005Cause argued and submitted
Feb 14 2005Opinion filed: Judgment reversed
  Opinion by: Baxter, J. -- Joined by George, C.J., Kennard, Werdegar, Chin, Brown, Moreno, JJ.
Mar 1 2005Rehearing petition filed
  petitioners HLC Properties, Ltd. and Thomas E. O'Sullivan
Mar 3 2005Time extended to consider modification or rehearing
  to and including May 13, 2005
Mar 8 2005Answer to rehearing petition filed
  by Real Parties in Interest MCA Records, Inc. et al.
Apr 13 2005Rehearing denied
Apr 13 2005Remittitur issued (civil case)
Apr 20 2005Returned record
  to Second District, pursuant to telephone request received from the L. A. Office. (Tommie)
Apr 22 2005Received:
  From Second District, Division Five, receipt for remittitur signed for by Z. Heraldez, Deputy

Feb 23 2004Opening brief on the merits filed
Mar 18 2004Answer brief on the merits filed
Apr 6 2004Reply brief filed (case fully briefed)
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website