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AINA
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Oct-30-2012 9:26 am
Case Number: CGC-10-500934
Filing Date: Oct-30-2012 9:25
Filed by: LESLEY FISCELLA
Juke Box: 001 Image: 03821630
ORDER
CATHAY BANK, A CALIFORNIA BANKING CORPORATION VS. RAYMOND
XIANG ZHANG et ai
001003821630
Instructions:
Please place this sheet on top of the document to be scanned.CoD WH WD
~ ™~
Prepared by the Court
San Francisco County Superior Court
OCT 8 0 2012
CLERK OF THE.COURT
BY 7 “4p rigs
SUPERIOR COURT OF CALIFORNIA ©
COUNTY OF SAN FRANCISCO
CATHAY BANK, a California banking Case No. CGC-10-500934
Corporation,
ORDER GRANTING IN PART
Plaintiff, DEFENDANT’S MOTION TO QUAH
DEPOSITION SUBPOENA FOR
v. CONSUMER RECORDS
RAYMOND XIANG KAI ZHANG, et al.,
Defendants.
AND RELATED CROSS-ACTIONS.
Plaintiff Cathay Bank has served a third-party subpoena for records on the custodian of
records for Defendants and Cross-Complainants’ former attorneys in this matter, the Schinner
Law Group (“Chevalier”) in which they seek what amounts to the Schinner Law Group’s entire
client file. Defendants and Cross-Complainants Raymond Xiang Kai Zhang, Cindy Zhang and
Dong Ying Qui have moved to quash the subpoena on the ground that the documents are
protected by the attorney-client privilege and Mr. Chevalicr’s attorney work-product privilege.
For the reasons explained below, Defendants’ motion is GRANTED IN PART as follows:
The motion to quash is GRANTED with respect to Requests 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11,
12, 13, and 15 of the August 23, 2012 Deposition Subpoena for Production of Business Records
ORDER GRANTING IN PART MOTION TO QUASH: CASE NO. CGC-10-500934directed to the Custodian of Records of the Schinner Law Group. The Schinner Law Group may
not produce any documents in response to these requests.
The motion is also GRANTED with respect to Request No. 14 to the extent Request No.
14 seeks documents concerning declarations other than Raymond Xiang Kai Zhang’s declaration
in support of his application for an order to show cause and a temporary restraining order. The
motion is DENIED with respect to that declaration. The Schinner Law Group shall produce
documents concerning Raymond Xiang Kai Zhang’s declaration in support of his application for
an order to show cause that are responsive to Request No. 14. Both parties” requests for
sanctions are DENIED. -
ANALYSIS
The attorney-client privilege has been a hallmark of Anglo-American jurisprudence for
almost 400 years. Mitchell v. Superior Court (1984) 37 Cal.3d 591, 599-600 (internal citations
omitted). The privilege authorizes a client to refuse to disclose, and to prevent others from
disclosing, confidential communications between attorney and client. Jd. Evid. Code. § 954.
The fundamental purpose behind the privilege is to safeguard the confidential relationship
between clients and their attorneys so as to promote full and open discussion of the facts and
tactics surrounding individual legal matters. Although exercise of the privilege may occasionally
result in the suppression of relevant evidence, the Legislature of this state has determined that
these concerns are outweighed by the importance of preserving confidentiality in the attorney-
client relationship. Jd. Nevertheless, the attorney-client privilege can be waived 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. Consent to disclosure is manifested
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 the
legal standing and opportunity to claim the privilege. Jd.
Plaintiff Cathay Bank argues that the defendants and their former attorneys waived the
attorney-client privilege with respect to communications with their former counsel and that
former counsel waived his work-product privilege when Mr. Raymond Xiang Kai Zhang testified
2.
ORDER GRANTING IN PART MOTION TO QUASH: CASE NO. CGC-10-500934~ 7
during his deposition attended by former counsel that paragraphs 12 and 13 of his declaration in
support of his application for an order to show cause and a temporary restraining order were
incorrect; attributed the incorrect statements to a miscommunication with his former counsel (Mr.
Schinner and Mr. Chevalier); and answered the following questions about his communications
concerning the preparation of the declaration:
Q. And before you signed the document did anybody translate
the document for you?
A. My attorney did explain it in detail.
Was it a word-four [sic]-word translation?
I would ask about things that I did not understand.
Which attorney explained to you?
My attorney?
What’s his name?
Quinn.
So it’s this lawyer here, Quinn Chevalier?
> Oo POP Yr
Yes.
Was there any portion of the declaration that Mr. Chevalier
explained to you that you do not feel you understood completely
well before you signed it?
A. No.
(Zhang T. 58:18-59:16)
. You learned that the bank had a deed of trust against
Q
your Third Street property sometime after you were served with the
lawsuit in June of — in or about June of 2010; correct?
A Yes.
Q. And did you believe that the bank had tricked you into
signing the deed of trust?
A. Yes.
Q. Did you tell that to your lawyer?
A. Yes.
Q. Do you believe your lawyer understood you when you told
-3-
ORDER GRANTING IN PART MOTION TO QUASH: CASE NO. CGC-10-5009340 ON DH BF WY LE
Se i a ea ei
Coe ND A BF YW NH BA S
20
him that?
A. I think he understood.
(Zhang T. 112:1-13).
Q. ... Mr. Zhang, are the statements in paragraphs 12 and 13 of
your declaration, which is Exhibit 6, true and correct?
A. 12 and 13?
Q. Yes.
A. I think that these two paragraphs are not that correct.
Q. In what way are they incorrect?
A.” We didn’t know we had to provide the Third Street as
collateral.
Q. So why did you sign a declaration that included this
language?
A. Maybe there was some places where I and the attorney did
not quite understand each other.
(Id. 112:22-113:10).
Q. Okay. How did you communicate with your lawyer prior to
the preparation of this declaration? Did you sit down and have a
meeting with them and talk with him about the facts?
A. Yes,
(Id. 113:21-25)
(id. 114:5-10)
Q. Before the draft declaration was prepared, did you have any
discussions with him about the facts of your case?
A Yes.
Q. And when did that conversation take place.
A. Before — One week before March 9".
Qa. Okay. So you had a meeting with Mr. Schinner and Mr.
Chevalier, and he discussed the facts of your case about a week
before the FRO hearing, correct?
A. Yes.
Qa. What did you tell them about the deed of trust on the Third
Street property?
-4-
ORDER GRANTING IN PART MOTION TO QUASH: CASE NO. CGC-10-500934(Id. 115:7-16).
A. T said I did not know that that was there.
Q. Did you tell them that you thought you had been tricked into
signing it?
A. Yes.
Q. Did you spend time discussing your declaration with your
lawyers before you signed it?
Q. Yes.
Q. How much time did you spend with them doing that task?
_ A. _ Around half-an-hour.
(Id. 116:7-10).
Q. Did they read each paragraph of the declaration to you in
English?
A. Yes.
(Id. 116:18-20).
(Tr. 120:3-11).
Q. And if there was something you didn’t understand, you ask
them to explain it to you, correct?
A. Yes.
Q. Do you believe that any of the statements — well, backup.
Were there any statements that they read to you that they did not
explain to your satisfaction?
A. I don’t remember.
Q. Okay. Do you recall hearing them read to you the text in
paragraphs 12 and 13? And now I’m going to read it aloud in
English after the translator translates my question.
Quote: “Under the terms of the Fourth Extension
Agreement, Cathay Bank required that Ray Kai LLC provide
additional collateral as consideration for further extending the
maturity date. Ray Kai LLC arranged for a third party to provide
additional collateral.”
Do you remember them saying those words to you in
English?
THE INTERPRETER: You don’t want me to translate —
-5-
ORDER GRANTING IN PART MOTION TO QUASH: CASE NO. CGC-10-500934—~ ~
MR. RUSSAK; I want just the question.
THE INTERPRETER: Just the question, okay.
THE WITNESS: I don’t remember
(Id. 121:4-21).
Cathay Bank also argues that Mr. Zhang further waived the attorney-client privilege when
“[h]e also testified, by implication that he did not tell the Schinner Law Group that Cathay Bank
had failed to make any disbursements after execution of the first extension agreement.”
(Plaintiff's Opposition to Motion to Quash at 11:26-12:1). Finally, Cathay Bank argues that
Cross-Complainants waived attorney-client privilege when they “asserted a language barrier
between Zhang and the Schinner Law Group as their primary reason for requesting relief to file
the [third amended cross complaint], and that the facts in the [second amended cross complaint]
were incorrect and needed to be amended as a result of that barrier.” (Plaintiff's Opposition at
12:5-6).
Fundamental Fairness may require disclosure of otherwise privileged information or
communications where a party has placed in issue a communication which goes to the heart of the
claim in controversy. Mitchell v. Superior Court (1984) 37 Cal.3d 591, 605. Thus, the Court of
Appeals in the case of, Merritt v. Superior Court held that the plaintiff and his counsel waived
both the attorney-client privilege and the counsel’s work-product privilege where the plaintiff
alleged that an insurer, “disabled plaintiff's personal injury counsel from settling the case within
policy limits by furnishing conflicting and irreconcilable statements concerning the amount of
insurance coverage which confused plaintiff's counsel.” Merritt v. Superior Court (1970) 9
Cal.App.3d 721, 724. The Court of Appeal explained:
[i]t is obvious both from the issues framed and the contents of the
depositions of plaintiff's prior counsel that plaintiff would rely
heavily upon evidence to be given by his said counsel and that he
would be using his prior counsel to prove matter which they could
only have learned in the course of their employment. Thus it was
not merely the initiation of the lawsuit but rather the manner of its
prosecution which constituted the waiver.
Merritt v. Superior Court, 9 Cal.App.3d at 730. However, as noted by the California
Supreme Court, subsequent decisions distinguishing the Merritt case have made clear that the
-6-
ORDER GRANTING IN PART MOTION TO QUASH: CASE NO. CGC-10-500934~~ YA DW BP WwW Ww
~ ~
principle is, “limited in its application to the one situation in which a client has placed in issue the
decisions, conclusions, and mental state of the attomey who will be called as a witness to prove
such matters.” Mitchell v. Superior Court (1984) 37 Cal.3d 591, 605.
The third-amended cross complaint alleges for the first time that Mr. Zhang has limited
English proficiency and Cathay Bank’s agent took advantage of that limited proficiency by
having him sign original loan documents for the “Macarthur project” with terms that were
different from the terms he had orally negotiated with the representative, and then the bank later
took advantage of Mr. Zhang’s limited proficiency by tricking him into signing a deed of trust on
a separate Third-Street property to secure the extension of a loan for the Macarthur project. See,
e.g., Third Amended Cross Complaint § § 15, 27-37, 44-50,
The decisions, conclusions, and mental state of cross-complainants’ former counsel at the
Skinner Law Group is not put at issue by these allegations. Rather, Cathay Bank seeks through
its document subpoena to obtain evidence it could use in cross-examination to challenge a
potential explanation by Mr. Zhang that his misunderstandings with his former lawyer are the
cause of the failure to make these allegations in the earlier cross-complaints. This situation is
distinguishable from the Merritt situation where a party will call counsel to prove matter which
the counsel could only have learned in the course of counsel’s employment.
Refusing to find waiver in this instance does create the potential for suppression of
relevant evidence. Nevertheless, this is the type of risk of suppression that goes hand in hand
with the attorney-client privilege. Moreover, Cathay Bank can seek to ameliorate any prejudice
at trial by requesting an in limine order precluding Mr. Zhang from testifying concerning
miscommunication with his former lawyers in the drafting of the cross-complaint, the first
amended cross complaint, and the second amended cross complaint.
Although cross-complainants did not waive the attorney-client privilege by alleging Mr.
Zhang’s limited English proficiency in connection with secking leave to file the third amended
cross-complaint, Mr. Zhang did voluntarily disclose a substantial portion of his communications
with lawyers at the Schinner Law Group when he testified at his deposition conceming the
preparation of his declaration in support of his motion for a temporary restraining order. Plaintiff
-7-
ORDER GRANTING IN PART MOTION TO QUASH: CASE NO. CGC-10-5009341
2
3
} is entitled to documents concerning his communications with his attorneys about the declaration.
ORDER
{ For the reasons stated above. cross-complainants’ motion to quash is GRANTED IN
| PART as follows. The motion to quash is GRANTED with respect to Requests 1, 2, 3, 4, 5, 6, 7,
8, 9, 10, 11, 12, 13, and 15 of the August 23, 2012 Deposition Subpoena for Production of
{ Business Records directed to the Custodian of Records of the Schinner Law Group. The Schinner
} Law Group may not produce any documents in response to these requests.
The motion is also GRANTED with respect to Request No. 14 to the extent Request No.
“| 14 seeks documents coiceriing declarations other than Raymond Xiang Kai Zhang’s declaration
} in support of his application for an order to show cause and a temporary restraining order. The
motion is DENIED with respect to that declaration. The Schinner Law Group shall produce
| documents concerning Raymond Xiang Kai Zhang’s declaration in support of his application for
}) an order to show cause that are responsive to Request No. 14. Both parties’ requests for sanctions
are DENIED.
| rg me
Dated: October 26, 2012 Emst A. Halperin
Judge Pro Tem of the Superior Court
-8-
ORDER GRANTING IN PART MOTION TO QUASH: CASE NO. CGC-10-500934SUPERIOR COURT OF CALIFORNIA
County of San Francisco
CATHAY BANK. Case Number: CGC-10-500934
Plaintiff(s)
CERTIFICATE OF MAILING
vs. (CCP 1013a (4})
ZHANG, et al.
Defendant(s)
I, LESLEY FISCELLA, a Deputy Clerk of the Superior Court of the County of San
Francisco, certify that I am not a party to the within action.
On 10/30/12 I served the attached ORDER GRANTING IN PART DEFENDANT'S
MOTION TO QUASH DEPOSITION SUBPEONA FOR CONSUJER RECORDS by placing a
copy thereof in a sealed envelope, addressed as follows:
KENNETH RUSSACK. MAUREEN MCQUAIG oe
FRANDZEL ROBINS BLOOM & CSATO, L.c. CoH & ASSOCIATES B.C.
6500 WILSHIRE BOULEVARD 1440 BROADWAY SUITE 1000
SEVENTEENTH FLOOR CARLAND CA 94612
LOS ANGELES CA 90048-4920 7
and, J then placed the sealed envelopes in the outgoing mail at 400 McAllister Street, San Francisco,
CA. 94102 on the date indicated above for collection, attachment of required prepaid postage, and
mailing on that date following standard court practices,
Dated:
MICHAEL T. YUEN. Clerk Of The Court
get 3° ait
LESLEY FISCELLA, Deputy Clerk
Preview
AINA SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Oct-30-2012 9:26 am Case Number: CGC-10-500934 Filing Date: Oct-30-2012 9:25 Filed by: LESLEY FISCELLA Juke Box: 001 Image: 03821630 ORDER CATHAY BANK, A CALIFORNIA BANKING CORPORATION VS. RAYMOND XIANG ZHANG et ai 001003821630 Instructions: Please place this sheet on top of the document to be scanned.CoD WH WD ~ ™~ Prepared by the Court San Francisco County Superior Court OCT 8 0 2012 CLERK OF THE.COURT BY 7 “4p rigs SUPERIOR COURT OF CALIFORNIA © COUNTY OF SAN FRANCISCO CATHAY BANK, a California banking Case No. CGC-10-500934 Corporation, ORDER GRANTING IN PART Plaintiff, DEFENDANT’S MOTION TO QUAH DEPOSITION SUBPOENA FOR v. CONSUMER RECORDS RAYMOND XIANG KAI ZHANG, et al., Defendants. AND RELATED CROSS-ACTIONS. Plaintiff Cathay Bank has served a third-party subpoena for records on the custodian of records for Defendants and Cross-Complainants’ former attorneys in this matter, the Schinner Law Group (“Chevalier”) in which they seek what amounts to the Schinner Law Group’s entire client file. Defendants and Cross-Complainants Raymond Xiang Kai Zhang, Cindy Zhang and Dong Ying Qui have moved to quash the subpoena on the ground that the documents are protected by the attorney-client privilege and Mr. Chevalicr’s attorney work-product privilege. For the reasons explained below, Defendants’ motion is GRANTED IN PART as follows: The motion to quash is GRANTED with respect to Requests 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 15 of the August 23, 2012 Deposition Subpoena for Production of Business Records ORDER GRANTING IN PART MOTION TO QUASH: CASE NO. CGC-10-500934directed to the Custodian of Records of the Schinner Law Group. The Schinner Law Group may not produce any documents in response to these requests. The motion is also GRANTED with respect to Request No. 14 to the extent Request No. 14 seeks documents concerning declarations other than Raymond Xiang Kai Zhang’s declaration in support of his application for an order to show cause and a temporary restraining order. The motion is DENIED with respect to that declaration. The Schinner Law Group shall produce documents concerning Raymond Xiang Kai Zhang’s declaration in support of his application for an order to show cause that are responsive to Request No. 14. Both parties” requests for sanctions are DENIED. - ANALYSIS The attorney-client privilege has been a hallmark of Anglo-American jurisprudence for almost 400 years. Mitchell v. Superior Court (1984) 37 Cal.3d 591, 599-600 (internal citations omitted). The privilege authorizes a client to refuse to disclose, and to prevent others from disclosing, confidential communications between attorney and client. Jd. Evid. Code. § 954. The fundamental purpose behind the privilege is to safeguard the confidential relationship between clients and their attorneys so as to promote full and open discussion of the facts and tactics surrounding individual legal matters. Although exercise of the privilege may occasionally result in the suppression of relevant evidence, the Legislature of this state has determined that these concerns are outweighed by the importance of preserving confidentiality in the attorney- client relationship. Jd. Nevertheless, the attorney-client privilege can be waived 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. Consent to disclosure is manifested 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 the legal standing and opportunity to claim the privilege. Jd. Plaintiff Cathay Bank argues that the defendants and their former attorneys waived the attorney-client privilege with respect to communications with their former counsel and that former counsel waived his work-product privilege when Mr. Raymond Xiang Kai Zhang testified 2. ORDER GRANTING IN PART MOTION TO QUASH: CASE NO. CGC-10-500934~ 7 during his deposition attended by former counsel that paragraphs 12 and 13 of his declaration in support of his application for an order to show cause and a temporary restraining order were incorrect; attributed the incorrect statements to a miscommunication with his former counsel (Mr. Schinner and Mr. Chevalier); and answered the following questions about his communications concerning the preparation of the declaration: Q. And before you signed the document did anybody translate the document for you? A. My attorney did explain it in detail. Was it a word-four [sic]-word translation? I would ask about things that I did not understand. Which attorney explained to you? My attorney? What’s his name? Quinn. So it’s this lawyer here, Quinn Chevalier? > Oo POP Yr Yes. Was there any portion of the declaration that Mr. Chevalier explained to you that you do not feel you understood completely well before you signed it? A. No. (Zhang T. 58:18-59:16) . You learned that the bank had a deed of trust against Q your Third Street property sometime after you were served with the lawsuit in June of — in or about June of 2010; correct? A Yes. Q. And did you believe that the bank had tricked you into signing the deed of trust? A. Yes. Q. Did you tell that to your lawyer? A. Yes. Q. Do you believe your lawyer understood you when you told -3- ORDER GRANTING IN PART MOTION TO QUASH: CASE NO. CGC-10-5009340 ON DH BF WY LE Se i a ea ei Coe ND A BF YW NH BA S 20 him that? A. I think he understood. (Zhang T. 112:1-13). Q. ... Mr. Zhang, are the statements in paragraphs 12 and 13 of your declaration, which is Exhibit 6, true and correct? A. 12 and 13? Q. Yes. A. I think that these two paragraphs are not that correct. Q. In what way are they incorrect? A.” We didn’t know we had to provide the Third Street as collateral. Q. So why did you sign a declaration that included this language? A. Maybe there was some places where I and the attorney did not quite understand each other. (Id. 112:22-113:10). Q. Okay. How did you communicate with your lawyer prior to the preparation of this declaration? Did you sit down and have a meeting with them and talk with him about the facts? A. Yes, (Id. 113:21-25) (id. 114:5-10) Q. Before the draft declaration was prepared, did you have any discussions with him about the facts of your case? A Yes. Q. And when did that conversation take place. A. Before — One week before March 9". Qa. Okay. So you had a meeting with Mr. Schinner and Mr. Chevalier, and he discussed the facts of your case about a week before the FRO hearing, correct? A. Yes. Qa. What did you tell them about the deed of trust on the Third Street property? -4- ORDER GRANTING IN PART MOTION TO QUASH: CASE NO. CGC-10-500934(Id. 115:7-16). A. T said I did not know that that was there. Q. Did you tell them that you thought you had been tricked into signing it? A. Yes. Q. Did you spend time discussing your declaration with your lawyers before you signed it? Q. Yes. Q. How much time did you spend with them doing that task? _ A. _ Around half-an-hour. (Id. 116:7-10). Q. Did they read each paragraph of the declaration to you in English? A. Yes. (Id. 116:18-20). (Tr. 120:3-11). Q. And if there was something you didn’t understand, you ask them to explain it to you, correct? A. Yes. Q. Do you believe that any of the statements — well, backup. Were there any statements that they read to you that they did not explain to your satisfaction? A. I don’t remember. Q. Okay. Do you recall hearing them read to you the text in paragraphs 12 and 13? And now I’m going to read it aloud in English after the translator translates my question. Quote: “Under the terms of the Fourth Extension Agreement, Cathay Bank required that Ray Kai LLC provide additional collateral as consideration for further extending the maturity date. Ray Kai LLC arranged for a third party to provide additional collateral.” Do you remember them saying those words to you in English? THE INTERPRETER: You don’t want me to translate — -5- ORDER GRANTING IN PART MOTION TO QUASH: CASE NO. CGC-10-500934—~ ~ MR. RUSSAK; I want just the question. THE INTERPRETER: Just the question, okay. THE WITNESS: I don’t remember (Id. 121:4-21). Cathay Bank also argues that Mr. Zhang further waived the attorney-client privilege when “[h]e also testified, by implication that he did not tell the Schinner Law Group that Cathay Bank had failed to make any disbursements after execution of the first extension agreement.” (Plaintiff's Opposition to Motion to Quash at 11:26-12:1). Finally, Cathay Bank argues that Cross-Complainants waived attorney-client privilege when they “asserted a language barrier between Zhang and the Schinner Law Group as their primary reason for requesting relief to file the [third amended cross complaint], and that the facts in the [second amended cross complaint] were incorrect and needed to be amended as a result of that barrier.” (Plaintiff's Opposition at 12:5-6). Fundamental Fairness may require disclosure of otherwise privileged information or communications where a party has placed in issue a communication which goes to the heart of the claim in controversy. Mitchell v. Superior Court (1984) 37 Cal.3d 591, 605. Thus, the Court of Appeals in the case of, Merritt v. Superior Court held that the plaintiff and his counsel waived both the attorney-client privilege and the counsel’s work-product privilege where the plaintiff alleged that an insurer, “disabled plaintiff's personal injury counsel from settling the case within policy limits by furnishing conflicting and irreconcilable statements concerning the amount of insurance coverage which confused plaintiff's counsel.” Merritt v. Superior Court (1970) 9 Cal.App.3d 721, 724. The Court of Appeal explained: [i]t is obvious both from the issues framed and the contents of the depositions of plaintiff's prior counsel that plaintiff would rely heavily upon evidence to be given by his said counsel and that he would be using his prior counsel to prove matter which they could only have learned in the course of their employment. Thus it was not merely the initiation of the lawsuit but rather the manner of its prosecution which constituted the waiver. Merritt v. Superior Court, 9 Cal.App.3d at 730. However, as noted by the California Supreme Court, subsequent decisions distinguishing the Merritt case have made clear that the -6- ORDER GRANTING IN PART MOTION TO QUASH: CASE NO. CGC-10-500934~~ YA DW BP WwW Ww ~ ~ principle is, “limited in its application to the one situation in which a client has placed in issue the decisions, conclusions, and mental state of the attomey who will be called as a witness to prove such matters.” Mitchell v. Superior Court (1984) 37 Cal.3d 591, 605. The third-amended cross complaint alleges for the first time that Mr. Zhang has limited English proficiency and Cathay Bank’s agent took advantage of that limited proficiency by having him sign original loan documents for the “Macarthur project” with terms that were different from the terms he had orally negotiated with the representative, and then the bank later took advantage of Mr. Zhang’s limited proficiency by tricking him into signing a deed of trust on a separate Third-Street property to secure the extension of a loan for the Macarthur project. See, e.g., Third Amended Cross Complaint § § 15, 27-37, 44-50, The decisions, conclusions, and mental state of cross-complainants’ former counsel at the Skinner Law Group is not put at issue by these allegations. Rather, Cathay Bank seeks through its document subpoena to obtain evidence it could use in cross-examination to challenge a potential explanation by Mr. Zhang that his misunderstandings with his former lawyer are the cause of the failure to make these allegations in the earlier cross-complaints. This situation is distinguishable from the Merritt situation where a party will call counsel to prove matter which the counsel could only have learned in the course of counsel’s employment. Refusing to find waiver in this instance does create the potential for suppression of relevant evidence. Nevertheless, this is the type of risk of suppression that goes hand in hand with the attorney-client privilege. Moreover, Cathay Bank can seek to ameliorate any prejudice at trial by requesting an in limine order precluding Mr. Zhang from testifying concerning miscommunication with his former lawyers in the drafting of the cross-complaint, the first amended cross complaint, and the second amended cross complaint. Although cross-complainants did not waive the attorney-client privilege by alleging Mr. Zhang’s limited English proficiency in connection with secking leave to file the third amended cross-complaint, Mr. Zhang did voluntarily disclose a substantial portion of his communications with lawyers at the Schinner Law Group when he testified at his deposition conceming the preparation of his declaration in support of his motion for a temporary restraining order. Plaintiff -7- ORDER GRANTING IN PART MOTION TO QUASH: CASE NO. CGC-10-5009341 2 3 } is entitled to documents concerning his communications with his attorneys about the declaration. ORDER { For the reasons stated above. cross-complainants’ motion to quash is GRANTED IN | PART as follows. The motion to quash is GRANTED with respect to Requests 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 15 of the August 23, 2012 Deposition Subpoena for Production of { Business Records directed to the Custodian of Records of the Schinner Law Group. The Schinner } Law Group may not produce any documents in response to these requests. The motion is also GRANTED with respect to Request No. 14 to the extent Request No. “| 14 seeks documents coiceriing declarations other than Raymond Xiang Kai Zhang’s declaration } in support of his application for an order to show cause and a temporary restraining order. The motion is DENIED with respect to that declaration. The Schinner Law Group shall produce | documents concerning Raymond Xiang Kai Zhang’s declaration in support of his application for }) an order to show cause that are responsive to Request No. 14. Both parties’ requests for sanctions are DENIED. | rg me Dated: October 26, 2012 Emst A. Halperin Judge Pro Tem of the Superior Court -8- ORDER GRANTING IN PART MOTION TO QUASH: CASE NO. CGC-10-500934SUPERIOR COURT OF CALIFORNIA County of San Francisco CATHAY BANK. Case Number: CGC-10-500934 Plaintiff(s) CERTIFICATE OF MAILING vs. (CCP 1013a (4}) ZHANG, et al. Defendant(s) I, LESLEY FISCELLA, a Deputy Clerk of the Superior Court of the County of San Francisco, certify that I am not a party to the within action. On 10/30/12 I served the attached ORDER GRANTING IN PART DEFENDANT'S MOTION TO QUASH DEPOSITION SUBPEONA FOR CONSUJER RECORDS by placing a copy thereof in a sealed envelope, addressed as follows: KENNETH RUSSACK. MAUREEN MCQUAIG oe FRANDZEL ROBINS BLOOM & CSATO, L.c. CoH & ASSOCIATES B.C. 6500 WILSHIRE BOULEVARD 1440 BROADWAY SUITE 1000 SEVENTEENTH FLOOR CARLAND CA 94612 LOS ANGELES CA 90048-4920 7 and, J then placed the sealed envelopes in the outgoing mail at 400 McAllister Street, San Francisco, CA. 94102 on the date indicated above for collection, attachment of required prepaid postage, and mailing on that date following standard court practices, Dated: MICHAEL T. YUEN. Clerk Of The Court get 3° ait LESLEY FISCELLA, Deputy Clerk