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1 Ralph S. LaMontagne, Jr. [State Bar No. 91536]
rlamontagne@l-a-lawoffices.com
2 Eric A. Amador [State Bar No. 143395]
eamador@l-a-lawoffices.com
3
LaMONTAGNE & AMADOR LLP
4 150 S. Los Robles Avenue, Suite 940
Pasadena, California 91101
5 Telephone: (626) 765-6800
Facsimile: (626) 765-6801
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Michael J. Terhar [State Bar No. 89491]
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mterhar@cunninghamswaim.com
8 Carl J. Basile [State Bar No. 251267]
cbasile@cunninghamswaim.com
9 G. Don Swaim [Pro Hac Vice]
dswaim@cunninghamswaim.com
10 Cunningham Swaim LLP
11 2 North Lake Avenue, Suite 550
Pasadena, California 91101
12 Telephone: (626) 765-3000
13 Attorneys for Defendant
STARR INDEMNITY & LIABILITY COMPANY
14
SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SANTA BARBARA
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PASSPORT 420, LLC, a Delaware ) Case No. 19CV03596
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Limited Liability Company; SPRING )
18 CREEK RESEARCH, LLC, a California ) Case Assigned to Judge Colleen K. Sterne
Limited Liability Company; and ) Department 5
19 WILLIAM PARRISH, an Individual, )
) STARR INDEMNITY’S MOTION IN LIMINE
20 Plaintiffs, ) NO. 5 - TO PREVENT CRITICAL TESTIMONY
) RELATIVE TO STARR INDEMNITY’S
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vs. ) ASSERTION OF THE ATTORNEY-CLIENT
22 ) PRIVILEGE; MEMORANDUM OF POINTS
STARR INDEMNITY & LIABILITY ) AND AUTHORITIES; DECLARATION OF
23 COMPANY, a Texas Corporation; ) RALPH S. LAMONTAGNE, JR. AND EXHIBITS
AVENATTI & ASSOCIATES, APC, a ) THERETO
24 California Professional Corporation; )
MICHAEL J. AVENATTI, an Individual; ) Date: April 15, 2024
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and DOES 1 through 10, ) Time: 11:30 a.m.
26 ) Dept: 5
Defendants. )
27 ) Complaint Filed: July 11, 2019
) Trial Date: April 15, 2024
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LAW OFFICES
LAMONTAGNE &
AMADOR LLP
STARR INDEMNITY’S MOTION IN LIMINE NO. 5 - TO PREVENT CRITICAL
TESTIMONY RE STARR’S ASSERTION OF THE ATTORNEY-CLIENT PRIVILEGE
4863-9112-8753
1 Defendant, Starr Indemnity & Liability Company (“Starr”), hereby moves the Court for an
2 order instructing counsel for Plaintiff, Passport 420, LLC (“Passport”), to:
3 (1) Refrain from making any comment to the jury regarding Starr’s assertion of the
4 attorney-client privilege or Starr’s failure to produce any documents covered by that
5 privilege;
6 (2) Refrain from asking any witness about Starr’s assertion of the attorney-client
7 privilege or Starr’s failure to produce any documents covered by that privilege; and
8 (3) Direct all of Passport’s witnesses to refrain from making any reference during
9 testimony to Starr’s assertion of the attorney-client privilege or Starr’s failure to
10 produce any documents covered by that privilege.
11 Said Motion is supported by the attached Memorandum of Points and Authorities and
12 Declaration of Ralph S. LaMontagne, Jr. (“LaMontagne Declaration”) (including exhibits). Said
13 Motion is also supported by the Proposed Order filed concurrently herewith.
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Dated: April 8, 2024 Respectfully submitted,
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LaMONTAGNE & AMADOR LLP
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18 By______________________________________
RALPH S. LaMONTAGNE, JR.
19 ERIC A. AMADOR
Attorneys for Defendant
20 STARR INDEMNITY & LIABILITY COMPANY
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LAW OFFICES
LAMONTAGNE & 1
AMADOR LLP
STARR INDEMNITY’S MOTION IN LIMINE NO. 5 - TO PREVENT CRITICAL
TESTIMONY RE STARR’S ASSERTION OF THE ATTORNEY-CLIENT PRIVILEGE
4863-9112-8753
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 In this action, Starr has asserted the attorney-client privilege with respect to
4 communications between Starr and its coverage counsel, Roger Clark (“Clark”). (LaMontagne
5 Declaration, ¶ 2; Exhibit A to LaMontagne Declaration, at pp. 6-7. 1) Passport challenged this
6 assertion and filed a motion to compel, which was denied. (Exhibit A, at p. 1.) In denying
7 Passport’s motion, this Court rejected the argument that Clark was essentially acting as a Starr
8 claims adjuster, and not coverage counsel. (Id., at p. 8.)
9 During the course of this litigation, Passport, and its experts, have stated or intimated, on
10 numerous occasions, that it was inappropriate and/or bad faith for Starr to assert the attorney-client
11 privilege as to portions of its claim file. (See, LaMontagne Declaration, ¶¶ 3-6; Exhibit B, at pp.
12 14:2-8, 16:7-9, 25:9-13; Exhibit C at pp. 17:6-13, 18:2-15, 20:15-25, 93:2-9, 94:5-14, 151:1-8,
13 157:20-158:6; Exhibit D at pp. 99:10-18, 113:11-14, 114:17-115:1; Exhibit E at p. 5, ¶ 12.) As will
14 be seen in the discussion that follows, any attempt by Passport’s counsel or its witnesses to assert
15 or argue that it was improper for Starr to assert the attorney-client privilege or to refrain from
16 producing claim file materials covered by that privilege, would be totally contrary to the law, and
17 should be disallowed.
18 II. ARGUMENT
19 “The attorney-client privilege, set forth at Evidence Code section 954, confers a privilege
20 on the client ‘to refuse to disclose, and to prevent another from disclosing, a confidential
21 communication between client and lawyer . . ..’ The privilege ‘has been a hallmark of Anglo-
22 American jurisprudence for almost 400 years.’ [Citation.] Its fundamental purpose ‘is to safeguard
23 the confidential relationship between clients and their attorneys so as to promote full and open
24 discussion of the facts and tactics surrounding individual legal matters. [Citation.] . . . [¶]
25 Although exercise of the privilege may occasionally result in the suppression of relevant evidence,
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Hereafter, all exhibit references are to those attached to the LaMontagne Declaration.
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LAW OFFICES
LAMONTAGNE & 2
AMADOR LLP
STARR INDEMNITY’S MOTION IN LIMINE NO. 5 - TO PREVENT CRITICAL
TESTIMONY RE STARR’S ASSERTION OF THE ATTORNEY-CLIENT PRIVILEGE
4863-9112-8753
1 the Legislature of this state has determined that these concerns are outweighed by the importance of
2 preserving confidentiality in the attorney-client relationship.’ ” (Costco Wholesale Corp. v.
3 Superior Court (2009) 47 Cal.4th 725, 732.) “The privilege is absolute.” (People v. Bell (2019) 7
4 Cal.5th 70, 96, italics added.) Accordingly, “ ‘disclosure may not be ordered, without regard to
5 relevance, necessity or any particular circumstances peculiar to the case.’ ” (Costco, supra, 47
6 Cal.4th at p. 732, italics added.)
7 As indicated above, Starr anticipates that Passport’s counsel will either argue, or solicit
8 testimony, to the effect that Starr’s assertion of the attorney-client privilege, and withholding of
9 communications covered thereunder, was improper and/or an act of bad faith. However, it is clear
10 that any “argument that [an insurer] act[s] in bad faith by invoking the attorney-client privilege to
11 protect communications lacks merit.” (Berns v. Sentry Select Ins. Co. (9th Cir. 2019) 766
12 Fed.Appx. 515, 518 (applying California law).) Indeed, under no circumstances may a jury “draw
13 any inference” from a party’s invocation of the privilege. (People v. Doolin (2009) 45 Cal.4th 390,
14 441.) In this regard, “[o]nce the privilege has been established,” as it has been here, “the trial judge
15 or counsel for any party may not comment on the fact that a party or witness has exercised the
16 privilege.” (Carroll v. Commission on Teacher Credentialing (2020) 56 Cal.5th 365, 380-381,
17 quoting Evid. Code § 913, subd. (a), italics added.) “ ‘If comment could be made on the exercise
18 of a privilege and adverse inference is drawn therefrom, a litigant would be under great pressure to
19 forego his claim of privilege and the protection sought to be afforded by the privilege would be
20 largely negated.’ ” (Id. at p. 382, quoting Assem. Com. on Judiciary, com. on Evid. Code § 913,
21 reprinted at 29B pt. 3A West’s Ann. Evid. Code (2009 ed.) foll. § 913, p. 245.) Here, applicability
22 of the attorney-client privilege was established when this Court denied Passport’s motion to
23 compel. (Ex. A at pp. 5-8.)
24 In short, as a matter of law, it cannot be inappropriate to rely upon a privilege that the law
25 not only allows, but encourages. (See, Commercial Standard Title Co. v. Superior Court (1979) 92
26 Cal.App.3d 934, 945 [“It is the policy of the court to encourage confidence and to preserve
27 inviolate this relationship of client-lawyer”].)
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LAW OFFICES
LAMONTAGNE & 3
AMADOR LLP
STARR INDEMNITY’S MOTION IN LIMINE NO. 5 - TO PREVENT CRITICAL
TESTIMONY RE STARR’S ASSERTION OF THE ATTORNEY-CLIENT PRIVILEGE
4863-9112-8753
1 III. CONCLUSION
2 For the reasons set forth above, Starr respectfully requests that the instant Motion be
3 granted, and that Passport’s counsel be instructed to:
4 (1) Refrain from making any comment to the jury regarding Starr’s assertion of the
5 attorney-client privilege or Starr’s failure to produce any documents covered by that
6 privilege;
7 (2) Refrain from asking any witness about Starr’s assertion of the attorney-client
8 privilege or Starr’s failure to produce any documents covered by that privilege; and
9 (3) Direct all of Passport’s witnesses to refrain from making any reference during
10 testimony to Starr’s assertion of the attorney-client privilege or Starr’s failure to
11 produce any documents covered by that privilege.
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Dated: April 8, 2024 Respectfully submitted,
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LaMONTAGNE & AMADOR LLP
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16 By______________________________________
RALPH S. LaMONTAGNE, JR.
17 ERIC A. AMADOR
Attorneys for Defendant
18 STARR INDEMNITY & LIABILITY COMPANY
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LAW OFFICES
LAMONTAGNE & 4
AMADOR LLP
STARR INDEMNITY’S MOTION IN LIMINE NO. 5 - TO PREVENT CRITICAL
TESTIMONY RE STARR’S ASSERTION OF THE ATTORNEY-CLIENT PRIVILEGE
4863-9112-8753
1 DECLARATION OF RALPH S. LaMONTAGNE, JR.
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I, Ralph S. LaMontagne, Jr., declare as follows:
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1. I am a partner in the law firm of LaMontagne & Amador LLP, co-counsel of record
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for defendant, Starr Indemnity & Liability Company (“Starr”). I have personal knowledge of the
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matters stated herein and, if called as a witness, I could and would competently testify thereto.
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2. Attached hereto as “Exhibit A” is a true and correct copy of this Court’s minute
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order of August 21, 2023, denying the Motion to Compel of Plaintiff, Passport 420, LLC.
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3. Attached hereto as “Exhibit B” are true and correct copies of excerpts from Plaintiff
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Passport 420, LLC’s Opposition to Defendant Starr Indemnity & Liability Company’s Motion for
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Summary Adjudication filed on or about September 1, 2023.
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4. Attached hereto as “Exhibit C” are true and correct copies of excerpts from the
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Deposition of David A. Gauntlett taken on December 14, 2023.
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5. Attached hereto as “Exhibit D” are true and correct copies of excerpts from the
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Deposition of Fredric Marziano taken on December 11, 2023.
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6. Attached hereto as “Exhibit E” is a true and correct copy of the Declaration of Fred
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G. Marziano [in] Support of Plaintiff Passport 420, LLC’s Opposition to Defendant Starr
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Indemnity & Liability Company’s Motion for Summary Adjudication (sans exhibit) filed on or
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about September 1, 2023.
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I declare under penalty of perjury under the laws of the State of California that the
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foregoing is true and correct.
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Executed this 8th day of April, 2024, at Pasadena, California.
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__________________________________
24 Ralph S. LaMontagne, Jr.
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LAW OFFICES
LAMONTAGNE & 5
AMADOR LLP
STARR INDEMNITY’S MOTION IN LIMINE NO. 5 - TO PREVENT CRITICAL
TESTIMONY RE STARR’S ASSERTION OF THE ATTORNEY-CLIENT PRIVILEGE
4863-9112-8753
EXHIBIT A
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANT A BARBARA
Dated and Entered: 08/21/2023 Time: 10:00 AM
Judicial Officer: Colleen K Sterne
Deputy Clerk: Danae Chauvin-Couture Dept: SB Dept 5
Deputy Sheriff: None
Court Reporter: FTR Case No: 19CV03596
Passport 420 LLC et al vs Starr Indemnity & Liability Company et al
Parties Present:
Richard Lloyd Attorney for Plaintiffs (in person)
Ralph LaMontagne Attorney for Defendant (in person)
NATURE OF PROCEEDINGS: Motion: Compel
The matter was regularly called before the court.
Counsel provided oral argument.
The Court adopted the tentative ruling as follows:
RULING :
The motion to compel production of documents is denied.
Background:
Attorney Michael Avenatti (Avenatti) had previously acted as attorney for William Parrish (Parrish) with
respect to various matters. In 2016, the two decided to form an entity through which 1hey would purchase
and own a private jet, with each providing funds toward the purchase of the jet. Passport 420, LLC
(Passport 420) was formed , made up of members Spring Creek Research , LLC (owned by Parrish) , and
Avenatti & Associates , APC (of which Avenatti was a principal). Avenatti was appointed as Manager of
Passport 420.
On January 27, 2017, Honda Aircraft Company LLC delivered a 2016 HA-420 aircraft, Serial No.
42000029 , to Passport 420. Through Spring Creek, Parrish claims to have contributed $2,311,000
toward the $4,383,605 purchase price of the jet. The funds which Avenatti contributed to the purchase of
the jet had been wired into his trust account in January 2017 by an individual who made the payment in
settlement of a claim possessed by Avenatti's client, Alexis Gardner. Avenatti then misrepresented the
terms of the settlement to Ms. Gardner in order to avoid paying the settlement proceeds to her at the
time they were paid . She ultimately received only a small portion of the funds received by Avenatti in
settlement of her claim . Parrish claims to have had no knowledge that the funds provided by Avenatti
toward the purchase of the aircraft had been embezzled by Avenatti.
On March 1, 2017, Passport 420, through its Operations Manager Chris Ohman, applied for, and
ultimately obtained, Aircraft Insurance on the jet from Starr Indemnity & Liability Company (Starr), for
policy periods from January 26, 2017, to January 26, 2018 (2017 Policy). Additional policies were later
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19CV03596 Passport 420 vs Starr Indemnity
August 21, 2023
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issued by Starr with policy periods from January 26, 2018, to January 26, 2019 (2018 Policy), and from
January 26, 2019, to January 26, 2020 (2019 Policy). None of the applications for these policies reflected
any liens on the aircraft. The 2019 Policy provides that an "employee" or "agent" of the Named Insured
may be an Insured only "while that person is acting within their official capacity as such."
Starr contends that it would not have issued any of the policies had it known that the aircraft had been
purchased with stolen funds .
On April 10, 2019, the aircraft was seized by the U.S. Government to secure restitution for persons
victimized by Avenatti's embezzlement, including Gardner. On May 1, 2019, Parrish submitted a Proof of
Loss statement to Starr, making a claim for the value of the aircraft lost to the government's seizure,
under the 2019 Policy.
By letter dated June 26 , 2019 , Starr initially reserved its rights under the policy, also contending that
payment to Parrish as an individual would be inappropriate. Passport 420, Parrish, and Spring Creek
filed the current action two weeks later, on July 11, 2019, alleging causes of action for breach of contract,
bad faith , and declaratory relief.
On November 2, 2021, Starr denied the Proof of Loss submitted by Passport 420, rescinded the 2017,
2018, and 2019 Policies, offered to return all premiums, and denied coverage under exclusions and
terms of the 2019 Policy.
Passport 420 filed the current motion to compel on July 14, 2023, under Code of Civil Procedure sections
2025.480 and 2031.300.
ANALYSIS:
As an initial matter, Starr brings attention to the fact that Passport 420 incorrectly brings a portion of its
motion pursuant to Code of Civil procedure section 2031.300, which is applicable when a party has not
timely responded to RFPs , rather than section 2031 .310 , which is applicable to insufficient or improper
responses, or section 2031.320, which applies to failing to permit inspection after stating that it would be
allowed. As this appears to simply be a clerical error, and the substance of the motion makes clear that it
is being brought as a motion to compel further responses, or a motion to produce documents that Starr
stated it would produce, the court will consider the motion to be brought under sections 2031.310 and
2031.320 . "[l]t may be sufficient that the supporting papers contain the grounds for the relief sought,
even if the notice does not." (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277.)
Timing of Motion Pursuant to Code of Civil Procedure section 2031.310
Passport 420's motion pursuant to Code of Civil Procedure section 2031.310 relates to RFPs that were
served on Starr on February 20, 2020. (Amador Dec., ,r 6 & Exh. A.) The requests included Starr's entire
claims file. (Ibid.) Starr served its original responses to the RFPs on May 1, 2021, and, in response to
meet and confer communications, provided supplemental responses on May 18, 2021, and June 25,
2021. (Id. at ,r 6 & Exhs. B-D.)
On July 9, 2021, Passport 420 filed a motion to compel further responses to RFPs and Requests for
Admission. (Id. at ,r 6 & Exh. T.) One of the disputed categories of documents was RFP No. 7: "Your
complete claims file for plaintiffs' claim for coverage under the policy ." On September 27, 2021, at the
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19CV03596 Passport 420 vs Starr Indemnity
August 21, 2023
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hearing on Passport 420's motion to compel further responses , Starr was ordered to produce additional
documents. (Id. at 1f 6 & Exh. V.) As a result, Starr provided additional supplemental responses on
October 16, 2021. (Id. at 1f 6 & Exh . E.)
On November 22 , 2021 , the parties provided a "joint statement for continued hearing on plaintiffs' motion
to compel. " In the joint statement, Passport 420 indicated that there was one issue that remained
unresolved. Namely: "Starr responded that it was standing on its objections as to the Underwriting
Manual. Accordingly, Passport respectfully requests the Court's assistance in resolving that sole
remaining issue." Passport 420 did not mention any further issues with respect to Starr's "complete
claims file ." As a result, on November 29 , 2021 , the court ordered production of the 10 years of
underwriting manuals , subject to a comprehensive protective order to be crafted by the parties. (Id. at 1f 6
& Exh . W.)
On November 29 , 2021 , Starr served its fourth and final supplemental responses to Passport 420's
RFPs. (Id. at 1f 6 & Exh. F.)
In connection with its responses to the RFPs, Starr provided various privilege logs asserting that certain
documents were protected from disclosure by the attorney client privilege and the work product doctrine.
Passport 420 did not challenge the adequacy of the privilege logs. In fact, in Reply to Starr's opposition
to the first motion to compel , Passport 420 affirmatively stated that Starr's objections based on attorney
client privilege and the work product doctrine were not at issue. (Id. at 1f 6 & Exh. U.)
"(a) On receipt of a response to a demand for inspection, copying, testing , or sampling, the demanding
party may move for an order compelling further response to the demand if the demanding party deems
that any of the following apply:
"(1) A statement of compliance with the demand is incomplete.
"(2) A representation of inability to comply is inadequate, incomplete, or evasive.
"(3) An objection in the response is without merit or too general.
"(b) A motion under subdivision (a) shall comply with each of the following :
"(1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the
demand .
"(2) The motion shall be accompanied by a meet and confer declaration under Section 2016 .040.
"(3) In lieu of a separate statement required under the California Rules of Court, the court may allow the
moving party to submit a concise outline of the discovery request and each response in dispute.
"(c) Unless notice of this motion is given within 45 days of the service of the verified response, or any
supplemental verified response , or on or before any specific later date to which the demanding party and
the responding party have agreed in writing, the demanding party waives any right to compel a further
response to the demand ." (Code Civ. Proc. , § 2031.310 , subds. (a)-(c).)
The court has no authority to grant a late filed motion to compel. "[T]he time within which to make a
motion to compel production of documents is mandatory and jurisdictional just as it is for motions to
compel further answers to interrogatories." ( Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)
The deadline to bring a motion to compel further responses to the RFPs , as well as the claims of
privilege and work product regarding those documents, pursuant to Code of Civil Procedure section
2031.310 , subdivision (c) lapsed over a year ago. Passport 420 appears to acknowledge that the motion
to compel is untimely brought under that code section. By way of its reply , Passport 420 abandons its
arguments under Code of Civil Procedure section 2031.310 and instead argues that the motion is "timely
SC-24 11 (Revised July 1, 2013) MINUTE ORDER
19CV03596 Passport 420 vs Starr Indemnity
August 21 , 2023
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and properly brought, either pursuant to Code of Civil Procedure section 2025.480 or pursuant to Code
of Civil Procedure section 2031.320 ." (Reply, p. 8. //. 4-6.) As such , the motion, as it is brought pursuant
to Code of Civil Procedure section 2031.310 will be denied.
Motion Pursuant to Code of Civil Procedure section 2031 .320
Passport makes a brief statement that Starr should be ordered to produce documents that "Starr agreed
in its prior discovery responses to produce." (Motion, p. 12, //. 1-6.)
"If a party filing a response to a demand for inspection , copying , testing, or sampling under Sections
2031.210, 2031.220, 2031.230 , 2031 .240, and 2031.280 thereafter fails to permit the inspection ,
copying , testing , or sampling in accordance with that party's statement of compliance , the demanding
party may move for an order compelling compliance." (Code Civ. Proc., § 2031.320 , subd. (a).)
Passport 420 provides no examples of documents that Starr stated it would produce, and then failed to
produce . In fact, a review of the extensive documents submitted in support of the motion, as well as the
opposition to the motion , shows that Starr never set forth a statement of compliance that it would
produce anything other than what it produced to Passport 420 . Additionally, Starr has consistently
maintained its claims of privilege throughout the case. As such , Code of Civil Procedure section
2031 .320 is inapplicable.
Motion Pursuant to Code of Civil Procedure section 2025.480
Starr does not argue that Passport 420's motion based on Code of Civil Procedure section 2025.480 is
untimely. Rather, Starr argues that it is without merit.
"(a) If a deponent fails to answer any question or to produce any document, electronically stored
information , or tangible thing under the deponent's control that is specified in the deposition notice or a
deposition subpoena , the party seeking discovery may move the court for an order compelling that
answer or production .
"(b) This motion shall be made no later than 60 days after the completion of the record of the deposition ,
and shall be accompanied by a meet and confer declaration under Section 2016 .040 ." (Code Civ. Proc.,
§ 2025.480 , subds . (a)-(b) .)
"(h) Not less than five days prior to the hearing on this motion , the moving party shall lodge with the court
a certified copy of any parts of the stenographic transcript of the deposition that are relevant to the
motion. If a deposition is recorded by audio or video technology, the moving party is required to lodge a
certified copy of a transcript of any parts of the deposition that are relevant to the motion." (Id. at subd .
(h).) Passport 420 lodged copies of portions of the deposition transcripts of Garrett Pendleton and Shari
Thompson , that it contends are relevant to the present motion , on August 16, 2023 . The lodging is timely.
On December 16, 2022, Passport 420 served an amended deposition notice of person most
knowledgeable ("PMK") re: claims handling . (Lloyd Dec., il 8.) Note: Passport 420 did not provide the
court with a copy of the notice with the current motion. However, the language, as well as the response ,
is included in Passport 420's separate statement. The documents requested in the deposition notice are:
"All writings used, relied upon , and/or received by the person(s) you designate to testify pursuant to this
Notice of Deposition in preparation for testimony regarding the matters set forth above." (Separate
Statement, p. 5, //. 18-20 .) Starr objected that the document category is overbroad and fails to identify
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with particularity the documents sought, that it seeks documents protected by the attorney client privilege
and the attorney work product doctrine, and that non-privileged documents responsive to the request
have already been produced. (Id. at. p. 5, //. 21-28.)
Passport 420 claims that their document request requires production of the entire claims file. It does not.
It only requires production of documents "relied upon , and/or received by ... [the deponent] ... in
preparation for testimony" at deposition. No further specificity was included in the document request.
Passport 420 deposed Garrett Pendleton, Starr's claims handling person most knowledgeable, on March
16, 2023. (Id. at 1f 9.) At deposition, Pendleton initially testified that he reviewed the entire claims file to
prepare for the deposition . (Lloyd Dec., 1f 9 & Exh. D.) However, Starr provides additional portions of the
deposition transcript wherein the testimony was clarified . Defense counsel, LaMontagne, told plaintiffs'
counsel, Lloyd, in response to an inquiry regarding bringing documents to the deposition for production:
"We did, and these are documents that I sent to Mr. Pendleton in advance of preparation for this
deposition and he indicated that he'd reviewed the entire claim file. We didn't do that in preparation for
this. The only one - - the only documents we reviewed are these and documents that are protected by
the attorney-client privilege ." (LaMontagne Dec., 1f 2 & Exh. X.) Lloyd responded : "Understood. Thank
you." (Ibid.) There are three other places in the deposition transcript, that the court has been made aware
of, where Pendleton makes clear that he did not actually review the entire claims file in preparation for
the deposition. Passport 420 cannot simply take one statement, most favorable to its position, and ignore
the fact that the statement was later clarified during the same deposition.
Further, in support of the opposition to the current motion , Pendleton declares: "The only documents I
reviewed in actual preparation for the deposition were those specific documents my counsel asked me to
review, which constituted only a small sliver of the Claim File. All non privileged documents that I
reviewed were produced by Starr's counsel shortly after the deposition commenced ." (Pendleton Dec., 1f
11 .)
While Passport 420 obviously questions the veracity of Pendleton's claims that all non-privileged
documents, that he reviewed in preparation for his deposition, were produced, Passport 420 has no
persuasive evidence of the same. Further solidifying that the request for production of documents was
complied with is the representation by Starr's counsel that it had "long-since produced to Passport the
non-privileged parts of its claim file, summing to well over four thousand pages . .. " (Amador Dec., 1f 5.)
By way of its Reply brief, Passport 420 argues that it was "deprived of the opportunity to question
Pendleton" about subsequently produced documents. (Reply, p. 7, //. 21-27.) However, counsel for
Passport 420 has made no representation that they have asked Starr to stipulate to a second deposition
so that Pendleton could be questioned about the documents, nor is the current motion one seeking leave
to take a subsequent deposition of Pendleton.
Attorney Client Privilege
As noted above, Passport 420's arguments regarding Starr's claims of attorney-client privilege, relative to
the RFPs served on February 20, 2020, are untimely. The only documents that the argument properly
pertains to, for purposes of this motion, are the documents that were reviewed by Pendleton in
preparation for deposition and the subsequently produced emails and "notepad detail" documents that
were provided by Starr to Passport on May 16, 2023. (Lloyd Dec., 1f 13 & Exh . H.)
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19CV03596 Passport 420 vs Starr Indemnity
August 21, 2023
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Passport 420 argues that Starr's claims of privilege are "highly suspect" and should be viewed with
"extreme skepticism" and that the claims are "designed to withhold responsive and non-privileged
documents from Passport to hinder its investigation into Starr's handling of its insurance claim." (Motion,
p. 13, //. 16-25.) Passport 420 further argues that Starr's retention of outside counsel, Roger W. Clark of
Clark Law Group ("Clark"), was for the dominant purpose to act as a claims handler and not an attorney
rendering legal advice . (Id. at p. 14, II. 17-19.) Clark had been retained on April 23 , 2019, which is prior to
the formal insurance claim being made by Passport 420 . (Lloyd Dec.,~ 6 & Exh. C.)
"Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party,
has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential
communication between client and lawyer if the privilege is claimed by:
"(a) The holder of the privilege;
"(b) A person who is authorized to claim the privilege by the holder of the privilege; or
"(c) The person who was the lawyer at the time of the confidential communication , but such person may
not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a
person authorized to permit disclosure.
"The relationship of attorney and client shall exist between a law corporation as defined in Article 10
(commencing with Section 6160) of Chapter 4 of Division 3 of the Business and Professions Code and
the persons to whom it renders professional services, as well as between such persons and members of
the State Bar employed by such corporation to render services to such persons. The word 'persons' as
used in this subdivision includes partnerships, corporations, limited liability companies, associations and
other groups and entities ." (Evid. Code , § 954.)
" '[C]onfidential communication between client and lawyer' " means information transmitted between a
client and his or her lawyer in the course of that relationship and in confidence by a means which, so far
as the client is aware, discloses the information to no third persons other than those who are present to
further the interest of the client in the consultation or those to whom disclosure is reasonably necessary
for the transmission of the information or the accomplishment of the purpose for which the lawyer is
consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that
relationship ." (Evid. Code,§ 952.) "[U]under the Evidence Code, the attorney-client privilege applies to
confidential communications within the scope of the attorney-client relationship even if the
communication does not relate to pending litigation; the privilege applies not only to communications
made in anticipation of litigation, but also to legal advice when no litigation is threatened." (Roberts v.
City of Palmdale (1993) 5 Cal.4th 363, 371, italics added .) Passport 420's implied argument, that pre-
litigation communications with Clark are not privileged , is without merit.
"The party claiming the privilege has the burden of establishing the preliminary facts necessary to
support its exercise, i.e ., a communication made in the course of an attorney-client relationship.
[Citations.] Once that party establishes facts necessary to support a prima facie claim of privilege , the
communication is presumed to have been made in confidence and the opponent of the claim of privilege
has the burden of proof to establish the communication was not confidential or that the privilege does not
for other reasons apply." (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733
(Costco) .) "The attorney-client privilege attaches to a confidential communication between the attorney
and the client and bars discovery of the communication irrespective of whether it includes unprivileged
material." (Id. at p. 734.)
Due to the "highly unusual circumstances surrounding the seizure [of the airplane], which included
criminal law and criminal proceedings, outside attorney Roger Clark was hired by Starr Adjustment to
SC-2411 (Revised July 1, 2013) MINUTE ORDER
19CV03596 Passport 420 vs Starr Indemnity
August 21, 2023
Page 7 of 8
assist as coverage counsel. His role was to provide legal advice relative to insurance coverage, and to
investigate, as necessary, [and] to adequately provide that advice. He was not retained to act as a claim
handler." (Thompson Dec., ,T 9.) "Mr. Clark was not an employee of Starr Adjustment or Starr Indemnity.
He had no access to Starr AdjustmenUStarr Indemnity's internal systems and had no access to the Claim
File. He had absolutely no authority whatsoever to make any binding decisions as to coverage. Such
decisions were exclusively in the domain of Starr Adjustment. Mr. Clark was authorized to recommend,
but not decide ." (Id. at ,T 10.)
Starr has established the preliminary facts necessary to support its claims of attorney-client privilege.
The burden has shifted to Passport 420 to establish the communication was not confidential or that the
privilege does not for other reasons apply.
Passport 420 argues that the attorney-client privilege does not apply because Clark's "dominant
purpose" was to act as a claims handler, rather than an attorney rendering advice. (Motion , p. 14, //.17,
17-26.)
Passport 420 relies heavily on 2,022 Ranch v. Superior Court (2003) 113 Cal.App.4th 1377 (2,022
Ranch) (Disapproved of by Costco, supra, 47 Cal.4th at p. 739) , in support of their argument.
"This " 'dominant purpose' "test not only looks to the dominant purpose for the communication, but also
to the dominant purpose of the attorney's work. [Citations .] Thus, " 'the attorney-client privilege [would]
not apply without qualification where the attorney was merely acting as a negotiator for the client
[citation], or merely gave business advice [citation], or was merely acting as a trustee for the client
[citation].'" [Citation.]" (Id. at p. 1390-1390.)
In 2,022 Ranch, the court was faced with a situation where an insurance company was withholding
claims investigation material based on attorney-client privilege. The in-house adjusters also happened to
be licensed attorneys . The court held : "We decline to accept either 2,022 Ranch 's position that all
material or communications developed by the in-house attorney adjusters in conducting the investigation
of 2,022 Ranch 's claim are open to discovery, or Chicago Title's position that all of the withheld material
is privileged. Rather, we conclude that evidence reflecting the factual investigation of 2,022 Ranch's
claim is subject to discovery. Only those communications reflecting the requesting of, or rendering of,
legal advice are protected by the attorney-client privilege, and only the attorney's legal impressions,
conclusions, opinions, or legal research or theories are subject to the attorney work product privilege."
(Id. at p. 1397.) In short, the court found that even though the attorneys held the title of claims adjusters ,
and were actual employees of the insurance company, not all of their communications were
discoverable.
Costco disapproved of the 2,022 Ranch in the following respects: "Insofar as inconsistent with our
conclusion , we also disapprove 2,022 Ranch v. Superior Court, supra , 113 Cal.App.4th 1377, an
insurance bad faith action. At issue were communications transmitted to the insurer from its in-house
claims adjusters who also were attorneys. The insurer claimed all the communications were privileged,
as involving legal advice emanating from its attorneys, whereas the petitioner asserted none were, as the
attorneys were serving merely as claims adjusters. The Court of Appeal distinguished communications
reporting the results of factual investigations from those reflecting the rendering of legal advice, held only
the latter were privileged, and ordered the trial court to review each of the communications to determine
its dominant purpose. (Id. at p. 1397.) In this respect, the court erred. The proper procedure would have
been for the trial court first to determine the dominant purpose of the relationship between the insurance
SC-2411 (Revised July 1. 2013) MINUTE ORDER
19CV03596 Passport 420 vs Starr Indemnity
August 21, 2023
Page 8 of 8
company and its in-house attorneys, i.e., was it one of attorney-client or one of claims adjuster-insurance
corporation (as some of the evidence suggested, see id. at pp. 1385, 1397-1398, 7 Cal.Rptr.3d 197).
The corporation, having the burden of establishing the preliminary fact that the communications were
made during the course of an attorney-client relationship [citation], was free to request an in camera
review of the communications to aid the trial court in making that determination, but the trial court could
not order disclosure of the information over the corporation's objection. If the trial court determined the
communications were made during the course of an attorney-client relationship, the communications,
including any reports of factual material, would be privileged, even though the factual material might be
discoverable by some other means. If the trial court instead concluded that the dominant purpose of the
relationship was not that of attorney and client, the communications would not be subject to the attorney-
client privilege and therefore would be generally discoverable. However, even then, the corporation
would be entitled to request an in camera review of a particular communication to support a claim that it
should be protected despite the general absence of an attorney-client relationship." (Costco, supra, 47
Cal.4th at pp . 739-740.)
Passport 420 misinterprets 2,022 Ranch , as well as Costco, as resulting in a complete waiver of the
attorney-client privilege when an attorney's dominant purpose is as a claims adjuster. That is not what
the cases hold. The cases hold that even if the attorney was employed as a claims adjuster, certain
communications would still be privileged.
Here, the evidence provided to the court establishes that Clark's dominant purpose was that of providing
legal advice to Starr regarding Passport 420's insurance claim. It is not unusual or unreasonable for an
insurance company to engage outside counsel to provide legal advice relative to large claims. It is even
more reasonable to do so in a claim as unusual as the present. The court is not persuaded that Clark's
dominant purpose was that of claims adjuster due to his sending a letter on his letterhead, to Passport
420's counsel, on behalf of Thompson , or that he drafted letters for Ms. Thompson's signature. Further,
any investigation performed by Clark does not make him a claims adjuster. Any good attorney would be
compelled to conduct a certain amount of investigation as part of their obligation to render sound legal
advice. As such, the attorney-client privilege applies and Passport 420's motion to compel production of
privileged documents reviewed in preparation for deposition , and unredacted copies of the documents
provided following the depositions, will be denied.
To the extent that Passport 420 argues that the recent production of emails and "notepad detail," by
Starr's current counsel, that were withheld by Starr's previous counsel, shows that Starr is improperly
withholding privileged documents, the court disagrees. While it is regrettable that previous counsel did
not produce the documents at the time they were requested , the fact that Starr's current counsel is
reviewing the prior document productions and providing additional documents that were withheld by
previous counsel, tends to show that they are acting in good-faith and ensuring that plaintiffs are
receiving the documents to which they are entitled.
DARREL E. PARKER , EXECUTIVE OFFICER Minutes Prepared by:
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SC-2411 (Revised July 1, 201 3) MINUTE ORDER
EXHIBIT B
l A. Barry Cappello (SBN 037835)
abc@cappellonoel.com
2 Lawrence J. Conlan (SBN 221350)
lconlan@cappellonoel.com
3 Richard Lloyd (SBN 33210 l)
rlloyd@cappellono(;_l.com
4 CAPPELLO & NOEL LLP
831 State Street
5 Santa Barbara, CA 93101-3227
Telephone: (805) 564-2444
6 Facsimile: (805) 965-5950
7 Attorneys for Plaintiffs
PASSPORT 420, LLC
8
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 COUNTY OF SANTA BARBARA
12 PASSPORT 420, LLC a Delaware Limited Case No.: 19CV03596
Liability Company; SPRING CREEK
13 RESEARCH, LLC, a California Limited
Liability Company; and WILLIAM PARRISH, PLAINTIFF PASSPORT 420, LLC'S
14 an Individual, OPPOSITION TO DEFENDANT STARR
INDEMNITY & LIABILITY
15 Plaintiffs, COMPANY'S MOTION FOR
Preview
1 Ralph S. LaMontagne, Jr. [State Bar No. 91536] rlamontagne@l-a-lawoffices.com 2 Eric A. Amador [State Bar No. 143395] eamador@l-a-lawoffices.com 3 LaMONTAGNE & AMADOR LLP 4 150 S. Los Robles Avenue, Suite 940 Pasadena, California 91101 5 Telephone: (626) 765-6800 Facsimile: (626) 765-6801 6 Michael J. Terhar [State Bar No. 89491] 7 mterhar@cunninghamswaim.com 8 Carl J. Basile [State Bar No. 251267] cbasile@cunninghamswaim.com 9 G. Don Swaim [Pro Hac Vice] dswaim@cunninghamswaim.com 10 Cunningham Swaim LLP 11 2 North Lake Avenue, Suite 550 Pasadena, California 91101 12 Telephone: (626) 765-3000 13 Attorneys for Defendant STARR INDEMNITY & LIABILITY COMPANY 14 SUPERIOR COURT OF THE STATE OF CALIFORNIA 15 COUNTY OF SANTA BARBARA 16 PASSPORT 420, LLC, a Delaware ) Case No. 19CV03596 17 Limited Liability Company; SPRING ) 18 CREEK RESEARCH, LLC, a California ) Case Assigned to Judge Colleen K. Sterne Limited Liability Company; and ) Department 5 19 WILLIAM PARRISH, an Individual, ) ) STARR INDEMNITY’S MOTION IN LIMINE 20 Plaintiffs, ) NO. 5 - TO PREVENT CRITICAL TESTIMONY ) RELATIVE TO STARR INDEMNITY’S 21 vs. ) ASSERTION OF THE ATTORNEY-CLIENT 22 ) PRIVILEGE; MEMORANDUM OF POINTS STARR INDEMNITY & LIABILITY ) AND AUTHORITIES; DECLARATION OF 23 COMPANY, a Texas Corporation; ) RALPH S. LAMONTAGNE, JR. AND EXHIBITS AVENATTI & ASSOCIATES, APC, a ) THERETO 24 California Professional Corporation; ) MICHAEL J. AVENATTI, an Individual; ) Date: April 15, 2024 25 and DOES 1 through 10, ) Time: 11:30 a.m. 26 ) Dept: 5 Defendants. ) 27 ) Complaint Filed: July 11, 2019 ) Trial Date: April 15, 2024 28 LAW OFFICES LAMONTAGNE & AMADOR LLP STARR INDEMNITY’S MOTION IN LIMINE NO. 5 - TO PREVENT CRITICAL TESTIMONY RE STARR’S ASSERTION OF THE ATTORNEY-CLIENT PRIVILEGE 4863-9112-8753 1 Defendant, Starr Indemnity & Liability Company (“Starr”), hereby moves the Court for an 2 order instructing counsel for Plaintiff, Passport 420, LLC (“Passport”), to: 3 (1) Refrain from making any comment to the jury regarding Starr’s assertion of the 4 attorney-client privilege or Starr’s failure to produce any documents covered by that 5 privilege; 6 (2) Refrain from asking any witness about Starr’s assertion of the attorney-client 7 privilege or Starr’s failure to produce any documents covered by that privilege; and 8 (3) Direct all of Passport’s witnesses to refrain from making any reference during 9 testimony to Starr’s assertion of the attorney-client privilege or Starr’s failure to 10 produce any documents covered by that privilege. 11 Said Motion is supported by the attached Memorandum of Points and Authorities and 12 Declaration of Ralph S. LaMontagne, Jr. (“LaMontagne Declaration”) (including exhibits). Said 13 Motion is also supported by the Proposed Order filed concurrently herewith. 14 Dated: April 8, 2024 Respectfully submitted, 15 LaMONTAGNE & AMADOR LLP 16 17 18 By______________________________________ RALPH S. LaMONTAGNE, JR. 19 ERIC A. AMADOR Attorneys for Defendant 20 STARR INDEMNITY & LIABILITY COMPANY 21 22 23 24 25 26 27 28 LAW OFFICES LAMONTAGNE & 1 AMADOR LLP STARR INDEMNITY’S MOTION IN LIMINE NO. 5 - TO PREVENT CRITICAL TESTIMONY RE STARR’S ASSERTION OF THE ATTORNEY-CLIENT PRIVILEGE 4863-9112-8753 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 In this action, Starr has asserted the attorney-client privilege with respect to 4 communications between Starr and its coverage counsel, Roger Clark (“Clark”). (LaMontagne 5 Declaration, ¶ 2; Exhibit A to LaMontagne Declaration, at pp. 6-7. 1) Passport challenged this 6 assertion and filed a motion to compel, which was denied. (Exhibit A, at p. 1.) In denying 7 Passport’s motion, this Court rejected the argument that Clark was essentially acting as a Starr 8 claims adjuster, and not coverage counsel. (Id., at p. 8.) 9 During the course of this litigation, Passport, and its experts, have stated or intimated, on 10 numerous occasions, that it was inappropriate and/or bad faith for Starr to assert the attorney-client 11 privilege as to portions of its claim file. (See, LaMontagne Declaration, ¶¶ 3-6; Exhibit B, at pp. 12 14:2-8, 16:7-9, 25:9-13; Exhibit C at pp. 17:6-13, 18:2-15, 20:15-25, 93:2-9, 94:5-14, 151:1-8, 13 157:20-158:6; Exhibit D at pp. 99:10-18, 113:11-14, 114:17-115:1; Exhibit E at p. 5, ¶ 12.) As will 14 be seen in the discussion that follows, any attempt by Passport’s counsel or its witnesses to assert 15 or argue that it was improper for Starr to assert the attorney-client privilege or to refrain from 16 producing claim file materials covered by that privilege, would be totally contrary to the law, and 17 should be disallowed. 18 II. ARGUMENT 19 “The attorney-client privilege, set forth at Evidence Code section 954, confers a privilege 20 on the client ‘to refuse to disclose, and to prevent another from disclosing, a confidential 21 communication between client and lawyer . . ..’ The privilege ‘has been a hallmark of Anglo- 22 American jurisprudence for almost 400 years.’ [Citation.] Its fundamental purpose ‘is to safeguard 23 the confidential relationship between clients and their attorneys so as to promote full and open 24 discussion of the facts and tactics surrounding individual legal matters. [Citation.] . . . [¶] 25 Although exercise of the privilege may occasionally result in the suppression of relevant evidence, 26 27 1 Hereafter, all exhibit references are to those attached to the LaMontagne Declaration. 28 LAW OFFICES LAMONTAGNE & 2 AMADOR LLP STARR INDEMNITY’S MOTION IN LIMINE NO. 5 - TO PREVENT CRITICAL TESTIMONY RE STARR’S ASSERTION OF THE ATTORNEY-CLIENT PRIVILEGE 4863-9112-8753 1 the Legislature of this state has determined that these concerns are outweighed by the importance of 2 preserving confidentiality in the attorney-client relationship.’ ” (Costco Wholesale Corp. v. 3 Superior Court (2009) 47 Cal.4th 725, 732.) “The privilege is absolute.” (People v. Bell (2019) 7 4 Cal.5th 70, 96, italics added.) Accordingly, “ ‘disclosure may not be ordered, without regard to 5 relevance, necessity or any particular circumstances peculiar to the case.’ ” (Costco, supra, 47 6 Cal.4th at p. 732, italics added.) 7 As indicated above, Starr anticipates that Passport’s counsel will either argue, or solicit 8 testimony, to the effect that Starr’s assertion of the attorney-client privilege, and withholding of 9 communications covered thereunder, was improper and/or an act of bad faith. However, it is clear 10 that any “argument that [an insurer] act[s] in bad faith by invoking the attorney-client privilege to 11 protect communications lacks merit.” (Berns v. Sentry Select Ins. Co. (9th Cir. 2019) 766 12 Fed.Appx. 515, 518 (applying California law).) Indeed, under no circumstances may a jury “draw 13 any inference” from a party’s invocation of the privilege. (People v. Doolin (2009) 45 Cal.4th 390, 14 441.) In this regard, “[o]nce the privilege has been established,” as it has been here, “the trial judge 15 or counsel for any party may not comment on the fact that a party or witness has exercised the 16 privilege.” (Carroll v. Commission on Teacher Credentialing (2020) 56 Cal.5th 365, 380-381, 17 quoting Evid. Code § 913, subd. (a), italics added.) “ ‘If comment could be made on the exercise 18 of a privilege and adverse inference is drawn therefrom, a litigant would be under great pressure to 19 forego his claim of privilege and the protection sought to be afforded by the privilege would be 20 largely negated.’ ” (Id. at p. 382, quoting Assem. Com. on Judiciary, com. on Evid. Code § 913, 21 reprinted at 29B pt. 3A West’s Ann. Evid. Code (2009 ed.) foll. § 913, p. 245.) Here, applicability 22 of the attorney-client privilege was established when this Court denied Passport’s motion to 23 compel. (Ex. A at pp. 5-8.) 24 In short, as a matter of law, it cannot be inappropriate to rely upon a privilege that the law 25 not only allows, but encourages. (See, Commercial Standard Title Co. v. Superior Court (1979) 92 26 Cal.App.3d 934, 945 [“It is the policy of the court to encourage confidence and to preserve 27 inviolate this relationship of client-lawyer”].) 28 LAW OFFICES LAMONTAGNE & 3 AMADOR LLP STARR INDEMNITY’S MOTION IN LIMINE NO. 5 - TO PREVENT CRITICAL TESTIMONY RE STARR’S ASSERTION OF THE ATTORNEY-CLIENT PRIVILEGE 4863-9112-8753 1 III. CONCLUSION 2 For the reasons set forth above, Starr respectfully requests that the instant Motion be 3 granted, and that Passport’s counsel be instructed to: 4 (1) Refrain from making any comment to the jury regarding Starr’s assertion of the 5 attorney-client privilege or Starr’s failure to produce any documents covered by that 6 privilege; 7 (2) Refrain from asking any witness about Starr’s assertion of the attorney-client 8 privilege or Starr’s failure to produce any documents covered by that privilege; and 9 (3) Direct all of Passport’s witnesses to refrain from making any reference during 10 testimony to Starr’s assertion of the attorney-client privilege or Starr’s failure to 11 produce any documents covered by that privilege. 12 Dated: April 8, 2024 Respectfully submitted, 13 LaMONTAGNE & AMADOR LLP 14 15 16 By______________________________________ RALPH S. LaMONTAGNE, JR. 17 ERIC A. AMADOR Attorneys for Defendant 18 STARR INDEMNITY & LIABILITY COMPANY 19 20 21 22 23 24 25 26 27 28 LAW OFFICES LAMONTAGNE & 4 AMADOR LLP STARR INDEMNITY’S MOTION IN LIMINE NO. 5 - TO PREVENT CRITICAL TESTIMONY RE STARR’S ASSERTION OF THE ATTORNEY-CLIENT PRIVILEGE 4863-9112-8753 1 DECLARATION OF RALPH S. LaMONTAGNE, JR. 2 I, Ralph S. LaMontagne, Jr., declare as follows: 3 1. I am a partner in the law firm of LaMontagne & Amador LLP, co-counsel of record 4 for defendant, Starr Indemnity & Liability Company (“Starr”). I have personal knowledge of the 5 matters stated herein and, if called as a witness, I could and would competently testify thereto. 6 2. Attached hereto as “Exhibit A” is a true and correct copy of this Court’s minute 7 order of August 21, 2023, denying the Motion to Compel of Plaintiff, Passport 420, LLC. 8 3. Attached hereto as “Exhibit B” are true and correct copies of excerpts from Plaintiff 9 Passport 420, LLC’s Opposition to Defendant Starr Indemnity & Liability Company’s Motion for 10 Summary Adjudication filed on or about September 1, 2023. 11 4. Attached hereto as “Exhibit C” are true and correct copies of excerpts from the 12 Deposition of David A. Gauntlett taken on December 14, 2023. 13 5. Attached hereto as “Exhibit D” are true and correct copies of excerpts from the 14 Deposition of Fredric Marziano taken on December 11, 2023. 15 6. Attached hereto as “Exhibit E” is a true and correct copy of the Declaration of Fred 16 G. Marziano [in] Support of Plaintiff Passport 420, LLC’s Opposition to Defendant Starr 17 Indemnity & Liability Company’s Motion for Summary Adjudication (sans exhibit) filed on or 18 about September 1, 2023. 19 I declare under penalty of perjury under the laws of the State of California that the 20 foregoing is true and correct. 21 Executed this 8th day of April, 2024, at Pasadena, California. 22 23 __________________________________ 24 Ralph S. LaMontagne, Jr. 25 26 27 28 LAW OFFICES LAMONTAGNE & 5 AMADOR LLP STARR INDEMNITY’S MOTION IN LIMINE NO. 5 - TO PREVENT CRITICAL TESTIMONY RE STARR’S ASSERTION OF THE ATTORNEY-CLIENT PRIVILEGE 4863-9112-8753 EXHIBIT A SUPERIOR COURT OF CALIFORNIA COUNTY OF SANT A BARBARA Dated and Entered: 08/21/2023 Time: 10:00 AM Judicial Officer: Colleen K Sterne Deputy Clerk: Danae Chauvin-Couture Dept: SB Dept 5 Deputy Sheriff: None Court Reporter: FTR Case No: 19CV03596 Passport 420 LLC et al vs Starr Indemnity & Liability Company et al Parties Present: Richard Lloyd Attorney for Plaintiffs (in person) Ralph LaMontagne Attorney for Defendant (in person) NATURE OF PROCEEDINGS: Motion: Compel The matter was regularly called before the court. Counsel provided oral argument. The Court adopted the tentative ruling as follows: RULING : The motion to compel production of documents is denied. Background: Attorney Michael Avenatti (Avenatti) had previously acted as attorney for William Parrish (Parrish) with respect to various matters. In 2016, the two decided to form an entity through which 1hey would purchase and own a private jet, with each providing funds toward the purchase of the jet. Passport 420, LLC (Passport 420) was formed , made up of members Spring Creek Research , LLC (owned by Parrish) , and Avenatti & Associates , APC (of which Avenatti was a principal). Avenatti was appointed as Manager of Passport 420. On January 27, 2017, Honda Aircraft Company LLC delivered a 2016 HA-420 aircraft, Serial No. 42000029 , to Passport 420. Through Spring Creek, Parrish claims to have contributed $2,311,000 toward the $4,383,605 purchase price of the jet. The funds which Avenatti contributed to the purchase of the jet had been wired into his trust account in January 2017 by an individual who made the payment in settlement of a claim possessed by Avenatti's client, Alexis Gardner. Avenatti then misrepresented the terms of the settlement to Ms. Gardner in order to avoid paying the settlement proceeds to her at the time they were paid . She ultimately received only a small portion of the funds received by Avenatti in settlement of her claim . Parrish claims to have had no knowledge that the funds provided by Avenatti toward the purchase of the aircraft had been embezzled by Avenatti. On March 1, 2017, Passport 420, through its Operations Manager Chris Ohman, applied for, and ultimately obtained, Aircraft Insurance on the jet from Starr Indemnity & Liability Company (Starr), for policy periods from January 26, 2017, to January 26, 2018 (2017 Policy). Additional policies were later Page 1 of 8 SC-2411 (Revised July 1, 20 13) MINUTE ORDER 19CV03596 Passport 420 vs Starr Indemnity August 21, 2023 Page 2 of 8 issued by Starr with policy periods from January 26, 2018, to January 26, 2019 (2018 Policy), and from January 26, 2019, to January 26, 2020 (2019 Policy). None of the applications for these policies reflected any liens on the aircraft. The 2019 Policy provides that an "employee" or "agent" of the Named Insured may be an Insured only "while that person is acting within their official capacity as such." Starr contends that it would not have issued any of the policies had it known that the aircraft had been purchased with stolen funds . On April 10, 2019, the aircraft was seized by the U.S. Government to secure restitution for persons victimized by Avenatti's embezzlement, including Gardner. On May 1, 2019, Parrish submitted a Proof of Loss statement to Starr, making a claim for the value of the aircraft lost to the government's seizure, under the 2019 Policy. By letter dated June 26 , 2019 , Starr initially reserved its rights under the policy, also contending that payment to Parrish as an individual would be inappropriate. Passport 420, Parrish, and Spring Creek filed the current action two weeks later, on July 11, 2019, alleging causes of action for breach of contract, bad faith , and declaratory relief. On November 2, 2021, Starr denied the Proof of Loss submitted by Passport 420, rescinded the 2017, 2018, and 2019 Policies, offered to return all premiums, and denied coverage under exclusions and terms of the 2019 Policy. Passport 420 filed the current motion to compel on July 14, 2023, under Code of Civil Procedure sections 2025.480 and 2031.300. ANALYSIS: As an initial matter, Starr brings attention to the fact that Passport 420 incorrectly brings a portion of its motion pursuant to Code of Civil procedure section 2031.300, which is applicable when a party has not timely responded to RFPs , rather than section 2031 .310 , which is applicable to insufficient or improper responses, or section 2031.320, which applies to failing to permit inspection after stating that it would be allowed. As this appears to simply be a clerical error, and the substance of the motion makes clear that it is being brought as a motion to compel further responses, or a motion to produce documents that Starr stated it would produce, the court will consider the motion to be brought under sections 2031.310 and 2031.320 . "[l]t may be sufficient that the supporting papers contain the grounds for the relief sought, even if the notice does not." (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277.) Timing of Motion Pursuant to Code of Civil Procedure section 2031.310 Passport 420's motion pursuant to Code of Civil Procedure section 2031.310 relates to RFPs that were served on Starr on February 20, 2020. (Amador Dec., ,r 6 & Exh. A.) The requests included Starr's entire claims file. (Ibid.) Starr served its original responses to the RFPs on May 1, 2021, and, in response to meet and confer communications, provided supplemental responses on May 18, 2021, and June 25, 2021. (Id. at ,r 6 & Exhs. B-D.) On July 9, 2021, Passport 420 filed a motion to compel further responses to RFPs and Requests for Admission. (Id. at ,r 6 & Exh. T.) One of the disputed categories of documents was RFP No. 7: "Your complete claims file for plaintiffs' claim for coverage under the policy ." On September 27, 2021, at the SC-2411 (Revised July 1, 2013) MINUTE ORDER 19CV03596 Passport 420 vs Starr Indemnity August 21, 2023 Page 3 of 8 hearing on Passport 420's motion to compel further responses , Starr was ordered to produce additional documents. (Id. at 1f 6 & Exh. V.) As a result, Starr provided additional supplemental responses on October 16, 2021. (Id. at 1f 6 & Exh . E.) On November 22 , 2021 , the parties provided a "joint statement for continued hearing on plaintiffs' motion to compel. " In the joint statement, Passport 420 indicated that there was one issue that remained unresolved. Namely: "Starr responded that it was standing on its objections as to the Underwriting Manual. Accordingly, Passport respectfully requests the Court's assistance in resolving that sole remaining issue." Passport 420 did not mention any further issues with respect to Starr's "complete claims file ." As a result, on November 29 , 2021 , the court ordered production of the 10 years of underwriting manuals , subject to a comprehensive protective order to be crafted by the parties. (Id. at 1f 6 & Exh . W.) On November 29 , 2021 , Starr served its fourth and final supplemental responses to Passport 420's RFPs. (Id. at 1f 6 & Exh. F.) In connection with its responses to the RFPs, Starr provided various privilege logs asserting that certain documents were protected from disclosure by the attorney client privilege and the work product doctrine. Passport 420 did not challenge the adequacy of the privilege logs. In fact, in Reply to Starr's opposition to the first motion to compel , Passport 420 affirmatively stated that Starr's objections based on attorney client privilege and the work product doctrine were not at issue. (Id. at 1f 6 & Exh. U.) "(a) On receipt of a response to a demand for inspection, copying, testing , or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: "(1) A statement of compliance with the demand is incomplete. "(2) A representation of inability to comply is inadequate, incomplete, or evasive. "(3) An objection in the response is without merit or too general. "(b) A motion under subdivision (a) shall comply with each of the following : "(1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand . "(2) The motion shall be accompanied by a meet and confer declaration under Section 2016 .040. "(3) In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute. "(c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response , or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand ." (Code Civ. Proc. , § 2031.310 , subds. (a)-(c).) The court has no authority to grant a late filed motion to compel. "[T]he time within which to make a motion to compel production of documents is mandatory and jurisdictional just as it is for motions to compel further answers to interrogatories." ( Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) The deadline to bring a motion to compel further responses to the RFPs , as well as the claims of privilege and work product regarding those documents, pursuant to Code of Civil Procedure section 2031.310 , subdivision (c) lapsed over a year ago. Passport 420 appears to acknowledge that the motion to compel is untimely brought under that code section. By way of its reply , Passport 420 abandons its arguments under Code of Civil Procedure section 2031.310 and instead argues that the motion is "timely SC-24 11 (Revised July 1, 2013) MINUTE ORDER 19CV03596 Passport 420 vs Starr Indemnity August 21 , 2023 Page 4 of 8 and properly brought, either pursuant to Code of Civil Procedure section 2025.480 or pursuant to Code of Civil Procedure section 2031.320 ." (Reply, p. 8. //. 4-6.) As such , the motion, as it is brought pursuant to Code of Civil Procedure section 2031.310 will be denied. Motion Pursuant to Code of Civil Procedure section 2031 .320 Passport makes a brief statement that Starr should be ordered to produce documents that "Starr agreed in its prior discovery responses to produce." (Motion, p. 12, //. 1-6.) "If a party filing a response to a demand for inspection , copying , testing, or sampling under Sections 2031.210, 2031.220, 2031.230 , 2031 .240, and 2031.280 thereafter fails to permit the inspection , copying , testing , or sampling in accordance with that party's statement of compliance , the demanding party may move for an order compelling compliance." (Code Civ. Proc., § 2031.320 , subd. (a).) Passport 420 provides no examples of documents that Starr stated it would produce, and then failed to produce . In fact, a review of the extensive documents submitted in support of the motion, as well as the opposition to the motion , shows that Starr never set forth a statement of compliance that it would produce anything other than what it produced to Passport 420 . Additionally, Starr has consistently maintained its claims of privilege throughout the case. As such , Code of Civil Procedure section 2031 .320 is inapplicable. Motion Pursuant to Code of Civil Procedure section 2025.480 Starr does not argue that Passport 420's motion based on Code of Civil Procedure section 2025.480 is untimely. Rather, Starr argues that it is without merit. "(a) If a deponent fails to answer any question or to produce any document, electronically stored information , or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena , the party seeking discovery may move the court for an order compelling that answer or production . "(b) This motion shall be made no later than 60 days after the completion of the record of the deposition , and shall be accompanied by a meet and confer declaration under Section 2016 .040 ." (Code Civ. Proc., § 2025.480 , subds . (a)-(b) .) "(h) Not less than five days prior to the hearing on this motion , the moving party shall lodge with the court a certified copy of any parts of the stenographic transcript of the deposition that are relevant to the motion. If a deposition is recorded by audio or video technology, the moving party is required to lodge a certified copy of a transcript of any parts of the deposition that are relevant to the motion." (Id. at subd . (h).) Passport 420 lodged copies of portions of the deposition transcripts of Garrett Pendleton and Shari Thompson , that it contends are relevant to the present motion , on August 16, 2023 . The lodging is timely. On December 16, 2022, Passport 420 served an amended deposition notice of person most knowledgeable ("PMK") re: claims handling . (Lloyd Dec., il 8.) Note: Passport 420 did not provide the court with a copy of the notice with the current motion. However, the language, as well as the response , is included in Passport 420's separate statement. The documents requested in the deposition notice are: "All writings used, relied upon , and/or received by the person(s) you designate to testify pursuant to this Notice of Deposition in preparation for testimony regarding the matters set forth above." (Separate Statement, p. 5, //. 18-20 .) Starr objected that the document category is overbroad and fails to identify SC-2411 (Revised July 1. 2013) MINUTE ORDER 19CV03596 Passport 420 vs Starr Indemnity August 21, 2023 Page 5 of 8 with particularity the documents sought, that it seeks documents protected by the attorney client privilege and the attorney work product doctrine, and that non-privileged documents responsive to the request have already been produced. (Id. at. p. 5, //. 21-28.) Passport 420 claims that their document request requires production of the entire claims file. It does not. It only requires production of documents "relied upon , and/or received by ... [the deponent] ... in preparation for testimony" at deposition. No further specificity was included in the document request. Passport 420 deposed Garrett Pendleton, Starr's claims handling person most knowledgeable, on March 16, 2023. (Id. at 1f 9.) At deposition, Pendleton initially testified that he reviewed the entire claims file to prepare for the deposition . (Lloyd Dec., 1f 9 & Exh. D.) However, Starr provides additional portions of the deposition transcript wherein the testimony was clarified . Defense counsel, LaMontagne, told plaintiffs' counsel, Lloyd, in response to an inquiry regarding bringing documents to the deposition for production: "We did, and these are documents that I sent to Mr. Pendleton in advance of preparation for this deposition and he indicated that he'd reviewed the entire claim file. We didn't do that in preparation for this. The only one - - the only documents we reviewed are these and documents that are protected by the attorney-client privilege ." (LaMontagne Dec., 1f 2 & Exh. X.) Lloyd responded : "Understood. Thank you." (Ibid.) There are three other places in the deposition transcript, that the court has been made aware of, where Pendleton makes clear that he did not actually review the entire claims file in preparation for the deposition. Passport 420 cannot simply take one statement, most favorable to its position, and ignore the fact that the statement was later clarified during the same deposition. Further, in support of the opposition to the current motion , Pendleton declares: "The only documents I reviewed in actual preparation for the deposition were those specific documents my counsel asked me to review, which constituted only a small sliver of the Claim File. All non privileged documents that I reviewed were produced by Starr's counsel shortly after the deposition commenced ." (Pendleton Dec., 1f 11 .) While Passport 420 obviously questions the veracity of Pendleton's claims that all non-privileged documents, that he reviewed in preparation for his deposition, were produced, Passport 420 has no persuasive evidence of the same. Further solidifying that the request for production of documents was complied with is the representation by Starr's counsel that it had "long-since produced to Passport the non-privileged parts of its claim file, summing to well over four thousand pages . .. " (Amador Dec., 1f 5.) By way of its Reply brief, Passport 420 argues that it was "deprived of the opportunity to question Pendleton" about subsequently produced documents. (Reply, p. 7, //. 21-27.) However, counsel for Passport 420 has made no representation that they have asked Starr to stipulate to a second deposition so that Pendleton could be questioned about the documents, nor is the current motion one seeking leave to take a subsequent deposition of Pendleton. Attorney Client Privilege As noted above, Passport 420's arguments regarding Starr's claims of attorney-client privilege, relative to the RFPs served on February 20, 2020, are untimely. The only documents that the argument properly pertains to, for purposes of this motion, are the documents that were reviewed by Pendleton in preparation for deposition and the subsequently produced emails and "notepad detail" documents that were provided by Starr to Passport on May 16, 2023. (Lloyd Dec., 1f 13 & Exh . H.) SC-2411 (Revised July 1. 2013) MINUTE ORDER 19CV03596 Passport 420 vs Starr Indemnity August 21, 2023 Page 6 of 8 Passport 420 argues that Starr's claims of privilege are "highly suspect" and should be viewed with "extreme skepticism" and that the claims are "designed to withhold responsive and non-privileged documents from Passport to hinder its investigation into Starr's handling of its insurance claim." (Motion, p. 13, //. 16-25.) Passport 420 further argues that Starr's retention of outside counsel, Roger W. Clark of Clark Law Group ("Clark"), was for the dominant purpose to act as a claims handler and not an attorney rendering legal advice . (Id. at p. 14, II. 17-19.) Clark had been retained on April 23 , 2019, which is prior to the formal insurance claim being made by Passport 420 . (Lloyd Dec.,~ 6 & Exh. C.) "Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by: "(a) The holder of the privilege; "(b) A person who is authorized to claim the privilege by the holder of the privilege; or "(c) The person who was the lawyer at the time of the confidential communication , but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure. "The relationship of attorney and client shall exist between a law corporation as defined in Article 10 (commencing with Section 6160) of Chapter 4 of Division 3 of the Business and Professions Code and the persons to whom it renders professional services, as well as between such persons and members of the State Bar employed by such corporation to render services to such persons. The word 'persons' as used in this subdivision includes partnerships, corporations, limited liability companies, associations and other groups and entities ." (Evid. Code , § 954.) " '[C]onfidential communication between client and lawyer' " means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship ." (Evid. Code,§ 952.) "[U]under the Evidence Code, the attorney-client privilege applies to confidential communications within the scope of the attorney-client relationship even if the communication does not relate to pending litigation; the privilege applies not only to communications made in anticipation of litigation, but also to legal advice when no litigation is threatened." (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 371, italics added .) Passport 420's implied argument, that pre- litigation communications with Clark are not privileged , is without merit. "The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e ., a communication made in the course of an attorney-client relationship. [Citations.] Once that party establishes facts necessary to support a prima facie claim of privilege , the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply." (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 (Costco) .) "The attorney-client privilege attaches to a confidential communication between the attorney and the client and bars discovery of the communication irrespective of whether it includes unprivileged material." (Id. at p. 734.) Due to the "highly unusual circumstances surrounding the seizure [of the airplane], which included criminal law and criminal proceedings, outside attorney Roger Clark was hired by Starr Adjustment to SC-2411 (Revised July 1, 2013) MINUTE ORDER 19CV03596 Passport 420 vs Starr Indemnity August 21, 2023 Page 7 of 8 assist as coverage counsel. His role was to provide legal advice relative to insurance coverage, and to investigate, as necessary, [and] to adequately provide that advice. He was not retained to act as a claim handler." (Thompson Dec., ,T 9.) "Mr. Clark was not an employee of Starr Adjustment or Starr Indemnity. He had no access to Starr AdjustmenUStarr Indemnity's internal systems and had no access to the Claim File. He had absolutely no authority whatsoever to make any binding decisions as to coverage. Such decisions were exclusively in the domain of Starr Adjustment. Mr. Clark was authorized to recommend, but not decide ." (Id. at ,T 10.) Starr has established the preliminary facts necessary to support its claims of attorney-client privilege. The burden has shifted to Passport 420 to establish the communication was not confidential or that the privilege does not for other reasons apply. Passport 420 argues that the attorney-client privilege does not apply because Clark's "dominant purpose" was to act as a claims handler, rather than an attorney rendering advice. (Motion , p. 14, //.17, 17-26.) Passport 420 relies heavily on 2,022 Ranch v. Superior Court (2003) 113 Cal.App.4th 1377 (2,022 Ranch) (Disapproved of by Costco, supra, 47 Cal.4th at p. 739) , in support of their argument. "This " 'dominant purpose' "test not only looks to the dominant purpose for the communication, but also to the dominant purpose of the attorney's work. [Citations .] Thus, " 'the attorney-client privilege [would] not apply without qualification where the attorney was merely acting as a negotiator for the client [citation], or merely gave business advice [citation], or was merely acting as a trustee for the client [citation].'" [Citation.]" (Id. at p. 1390-1390.) In 2,022 Ranch, the court was faced with a situation where an insurance company was withholding claims investigation material based on attorney-client privilege. The in-house adjusters also happened to be licensed attorneys . The court held : "We decline to accept either 2,022 Ranch 's position that all material or communications developed by the in-house attorney adjusters in conducting the investigation of 2,022 Ranch 's claim are open to discovery, or Chicago Title's position that all of the withheld material is privileged. Rather, we conclude that evidence reflecting the factual investigation of 2,022 Ranch's claim is subject to discovery. Only those communications reflecting the requesting of, or rendering of, legal advice are protected by the attorney-client privilege, and only the attorney's legal impressions, conclusions, opinions, or legal research or theories are subject to the attorney work product privilege." (Id. at p. 1397.) In short, the court found that even though the attorneys held the title of claims adjusters , and were actual employees of the insurance company, not all of their communications were discoverable. Costco disapproved of the 2,022 Ranch in the following respects: "Insofar as inconsistent with our conclusion , we also disapprove 2,022 Ranch v. Superior Court, supra , 113 Cal.App.4th 1377, an insurance bad faith action. At issue were communications transmitted to the insurer from its in-house claims adjusters who also were attorneys. The insurer claimed all the communications were privileged, as involving legal advice emanating from its attorneys, whereas the petitioner asserted none were, as the attorneys were serving merely as claims adjusters. The Court of Appeal distinguished communications reporting the results of factual investigations from those reflecting the rendering of legal advice, held only the latter were privileged, and ordered the trial court to review each of the communications to determine its dominant purpose. (Id. at p. 1397.) In this respect, the court erred. The proper procedure would have been for the trial court first to determine the dominant purpose of the relationship between the insurance SC-2411 (Revised July 1. 2013) MINUTE ORDER 19CV03596 Passport 420 vs Starr Indemnity August 21, 2023 Page 8 of 8 company and its in-house attorneys, i.e., was it one of attorney-client or one of claims adjuster-insurance corporation (as some of the evidence suggested, see id. at pp. 1385, 1397-1398, 7 Cal.Rptr.3d 197). The corporation, having the burden of establishing the preliminary fact that the communications were made during the course of an attorney-client relationship [citation], was free to request an in camera review of the communications to aid the trial court in making that determination, but the trial court could not order disclosure of the information over the corporation's objection. If the trial court determined the communications were made during the course of an attorney-client relationship, the communications, including any reports of factual material, would be privileged, even though the factual material might be discoverable by some other means. If the trial court instead concluded that the dominant purpose of the relationship was not that of attorney and client, the communications would not be subject to the attorney- client privilege and therefore would be generally discoverable. However, even then, the corporation would be entitled to request an in camera review of a particular communication to support a claim that it should be protected despite the general absence of an attorney-client relationship." (Costco, supra, 47 Cal.4th at pp . 739-740.) Passport 420 misinterprets 2,022 Ranch , as well as Costco, as resulting in a complete waiver of the attorney-client privilege when an attorney's dominant purpose is as a claims adjuster. That is not what the cases hold. The cases hold that even if the attorney was employed as a claims adjuster, certain communications would still be privileged. Here, the evidence provided to the court establishes that Clark's dominant purpose was that of providing legal advice to Starr regarding Passport 420's insurance claim. It is not unusual or unreasonable for an insurance company to engage outside counsel to provide legal advice relative to large claims. It is even more reasonable to do so in a claim as unusual as the present. The court is not persuaded that Clark's dominant purpose was that of claims adjuster due to his sending a letter on his letterhead, to Passport 420's counsel, on behalf of Thompson , or that he drafted letters for Ms. Thompson's signature. Further, any investigation performed by Clark does not make him a claims adjuster. Any good attorney would be compelled to conduct a certain amount of investigation as part of their obligation to render sound legal advice. As such, the attorney-client privilege applies and Passport 420's motion to compel production of privileged documents reviewed in preparation for deposition , and unredacted copies of the documents provided following the depositions, will be denied. To the extent that Passport 420 argues that the recent production of emails and "notepad detail," by Starr's current counsel, that were withheld by Starr's previous counsel, shows that Starr is improperly withholding privileged documents, the court disagrees. While it is regrettable that previous counsel did not produce the documents at the time they were requested , the fact that Starr's current counsel is reviewing the prior document productions and providing additional documents that were withheld by previous counsel, tends to show that they are acting in good-faith and ensuring that plaintiffs are receiving the documents to which they are entitled. DARREL E. PARKER , EXECUTIVE OFFICER Minutes Prepared by: _ _ ___..;cD....;;a___n..:. .a. :. .e. . cC---h..:... a..:... uv_in-----"C-"o..:...ut=u-'-'ree-_ _ _ , Deputy SC-2411 (Revised July 1, 201 3) MINUTE ORDER EXHIBIT B l A. Barry Cappello (SBN 037835) abc@cappellonoel.com 2 Lawrence J. Conlan (SBN 221350) lconlan@cappellonoel.com 3 Richard Lloyd (SBN 33210 l) rlloyd@cappellono(;_l.com 4 CAPPELLO & NOEL LLP 831 State Street 5 Santa Barbara, CA 93101-3227 Telephone: (805) 564-2444 6 Facsimile: (805) 965-5950 7 Attorneys for Plaintiffs PASSPORT 420, LLC 8 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF SANTA BARBARA 12 PASSPORT 420, LLC a Delaware Limited Case No.: 19CV03596 Liability Company; SPRING CREEK 13 RESEARCH, LLC, a California Limited Liability Company; and WILLIAM PARRISH, PLAINTIFF PASSPORT 420, LLC'S 14 an Individual, OPPOSITION TO DEFENDANT STARR INDEMNITY & LIABILITY 15 Plaintiffs, COMPANY'S MOTION FOR